T 

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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 
GIFT  OF 


LAW   LIBRARY 

OF 

LOS  ANGELES  COUNTY 


^  A. 


o«.t.t 


A 
PRACTICAL  TREATISE 


A-BSTRAOTS 


EXAMINATIONS  OF  TITLE 


REAL  PROPERTY. 


GEORGE  W.  WARVELLE, 


CHICAGO: 
CALLAGHAN    AND    COMPANY, 

1^83. 


Entered  According  to  Act  of  Congress,  in  the  year  18S3, 

By  GEORGE  W.  WARVELLE, 

In  the  Office  of  the  Librarian  ot  Congress,  at  Washington. 


r 


PHINTEO,    *N0    fTEflEOTYPEO 

BY   THt 

CHICAGO    LEGAL    NEWS    COMPAsV. 


TO 

JOSEPH  VERY  QUARLES, 

OF    KACINE,    WIS., 

I    DEDICATE    THIS    VOLUME,    AS 

A     TOKEN     OF     RESPECT     AND     APPBECIATION,     AND     IN 

BEMEMBRANCE     OF     THE     K*  ^DLY     AID 

AND     ENCOURAGEMENT    OF 

FORMER    TEARS. 


G49lfefc 


PREFACE. 


I  have  no  apolo_:^j  to  make  for  the  appearance  of  this  book, 
but  a  word  or  two  of  explanation  may  be  in  order. 

The  subject  which  I  have  here  undertaken  to  elaborate,  is 
new  to  the  legal  literature  of  the  United  States,  although 
abstracts  of  title  have  long  been  employed  by  the  profession 
in  all  matters  pertaining  to  title  of  real  property.  But  with 
each  successive  year  it  has  assumed  vaster  proportions,  and, 
as  the  country  continued  steadily  to  develop,  it  has  gradually 
been  shaping  itself  into  a  distinct  branch  of  legal  science,  that 
calls  for  a  high  degree  of  technical  skill  and  special  learning. 
And  this  has  reference  both  to  conveyancers  and  lawyers;  the 
one  to  properly  and  systematically  compile,  and  the  other  to 
interpret,  the  evidences  of  title  which  go  to  support  claims 
of  ownersliip  in  land. 

No  American  author  has  heretofore  seen  fit  to  epitomize, 
for  the  special  use  of  convej'ancers  and  the  legal  profession, 
the  questions  of  law  which  arise  during  the  perusal  of  an 
abstract,  or  to  direct  the  attention  of  either  class  toward  a 
systematic  method  of  presenting  those  questions.*  Eminent 
writers  on  real  property  have  passed  the  subject  in  silence, 
and  the  few  American  writers  on  conveyancing,  who  have 
heretofore  ventured  to  touch  upon  it,  have  dismissed  it  with 
the  fewest  possible  words,  and,  as  a  rule,  whatever  remarks 
they  may  have  made  were  usually  but  servile  echoes  of  En- 
glish  writers. 

Several  works,  of  more  than  ordinary  merit,  have  appeared 
in  England,  in  which  the  subject,  from  an  Englisli  standpoint, 

*  The  only  exception,  if  it  be  an  exception,  is  a  small  hand  book  by  M.  E. 
Cui-wen,  on  "  Searching  the  Records."    (Cincinnati,  1SG7.) 

(V) 


VI  PREFACE. 

is  very  tlioroui>;lil.y  and  ably  discussed,  but  tlie  irreconcilable 
difference  in  our  laws  and  institutions  have  rendered  them 
conipai-atively  worthless  to  the  American  practitioner,  and 
they  are  rarely  met  with  on  this  side  of  the  water.  The 
methods  of  Eui^lish  conveyancers  and  solicitors,  while  admir- 
ably adapted  to  the  exifijencies  of  their  own  laws  and  cus- 
toms, and  highly  conducive  to  the  end  desired,  are  but  ill 
suited  to  our  wants  and  furnish  little  assistance  in  tracing  the 
aevious  courses  of  an  American  title. 

In  view,  therefore,  of  the  constantly  increasing  importance 
of  abstracts  of  title,  and  of  the  present  inadequate  means  of 
information  concerning  the  same,  1  have  been  prompted  to 
write  this  book.  It  combines,  not  only  the  result  of  my  own 
experience,  both  in  the  preparation  of  abstracts  and  in  passing 
titles  therein  presented,  but  also  the  experience  of  a  number 
of  eminent  conveyancers  and  lawyers  whom  I  have  freely 
consulted  during  its  preparation. 

I  have  endeavored  to  give  a  general  outline  of  what  I  con- 
sider the  best  methods  of  compiling  the  abstract  so  as  to 
insure  the  most  satisfactory  results;  a  general  system  for  the 
arrangement  of  the  several  parts  and  formal  divisions;  and 
the  latest  approved  plans  for  presenting  the  essential  matter 
of  deeds,  instruments  and  proceedings  affecting  title  necessary 
to  be  shown,  I  have  further  made  a  few  suggestions  relative 
to  laying  out  and  kee])ing  a  set  of  abstract  indices,  the  great 
utility  of  which  must  be  apparent  without  commeu't.  To 
reduce  the  work  within  the  smallest  allowable  space,  as  well 
as  to  prevent  cotifusion,  lliave  made  but  few  allusions  to  local 
statutes,  while  the  statements  of  law  have  been  confined 
mainly  to  broad  and  commonly  accepted  doctrines.  It  is 
expected  that  the  careful  practitioner  will  be  fully  posted  on 
the  laws  of  his  own  State  relative  to  descent,  purchase,  etc., 
and  hence,  the  rules  here  given  are  of  general  application 
only.  As  this  book  is  intended  for  the  use  of  conveyancers, 
as  well  as  for  the  legal  profession,  it  has  been  deemed  best,  in 
many  instances,  to  elucidate  only  those  principles  which  ai-e 
elementary  in  their  nature,  and  to  avoid  subtilities  or  extend-  / 
ed  discussions.  / 

I 


PREFACE.  Vll 

Tlion<i:li  tin's  work  is  entirely  the  result  of  my  own  personal 
labor,  I  am  under  many  oLli,:;ations  to  gentlemen  of  the  bar 
for  advice  and  suggestion,  and  particularly  would  I  express 
my  thanks  to  S.  M.  Henderson,  Esq.,  and  Messrs.  Haddock, 
Vallette  &  Kickcords,  of  Chicago,  for  the  very  valuable  assist- 
ance rendered  in  the  preparation  of  many  of  the  forms. 

I  trust  that  my  work  may  meet  tlie  favor  of  tlie  profession, 
and  be  of  real  utility  and  assistance  to  them;  that  it  may 
serve  to  assist  in  creating  a  better  understanding  between 
conveyancer  and  counsel,  by  acquainting  each  with  the  meth- 
ods of  the  other;  and  that  it  may  be  instrumental  in  building 
up  a  symmetrical  system  of  title  abstracts  in  this  country. 

G.  W.  W. 

Chicago,  Sept.  1,  1883. 


ANALYSIS  OF  CONTENTS. 


[the  figukes  have  reference  to  the  pages.] 
CHAPTER  I. 

PRELIMINARY   OBSERVATIONS. 

PAGE 

Sec.    1.     Introductory  remarks 1 

pur^  ort  of  the  work 1 

2.  Definition 2 

3.  Origin  of  abstracts 2 

4.  Essentials  of  the   abstract 3 

5.  The  English  method 3 

6.  The  American  method 4 

7.  Abstracts  and  examinations  di^t  nguished 5 

8.  Qualifications  of  the  exammer G 

9.  Liability  for  error 7 

implied  skill  and  knowledge 7 

necessary  conditions  to  fix  liability 8 

10.    Miscellaneous 8 

vendor  to  furnish  abstract 8 

custody  and  ownership 8 

CHAPTER  n. 

TITLIC   TO   REAL   PROPERTY. 

Sec.    1.     Property  and  title  distinguished 9 

2.  Title,  how  acquired 9 

by  descent 9 

by  purchase 9 

other  distinctions 10 

3.  Classification  of  title 11 

Blackstone's  divisions 10 

American  divisions 10 

bad,  doubtful  and  perfect 10 

legal  and  equitable 11 

4.  Source  of  title '  1 

the  King II 

the  State U 

(ix) 


X  ANALYSIS    OF    CONTENTS. 

Sec.  r.\oF.. 

5.  Nature  of. title  in  the  United  States 12 

all  land  held  in  allodium 1'2 

sulnnission  to  legislative  control l-> 

6.  Estates  under  allodial  titles lo 

fee  simple 1-^ 

for  life 14 

for  years 11 

possession  and  expec'  ancy 14 

reversions  and  contingencies 14 

7.  Uses  and  trusts 15 

8.  Powers 1 5 

9.  Homesteads 17 

10.  Dower  and  curtesy IS 

11.  Easements  and  ^  ervitudos 21 

12.  Tenancies 22 

13.  Color  of  title 28 

14.  Evidences  of  title 24 

15.  Alienation  and  descf  nt 24 

CHAPTER  HI. 

TITLE   BY   DESCENT. 

Sec.   1.     Nature  of  the  title 26 

2.  Piules  of  descent <; 27 

3.  Consanguinity 28 

methods  of  computation 28 

by  the  common  law 28 

by  the  civil  law 29 

table  of  degrees  of  consangu-'nit}- 30 

4.  Affinity 31 

5.  Adoption 81 

6.  Proof  of  heirship 32 

7.  Proof  of  death 38 

8.  Conveyances  by  heirs 33 

CHAPTER  IV. 

TITLE   BY    PURCHASE. 

Sec,   1.     Nature  of  the  title 35 

methods  of  purchase 35 

2.  Deed 36 

3.  Devise 36 

4.  Public  grant ^6 

5.  Estoppel 37 

6.  Technical  estoppel 38 

7.  Equitable  estoppel 40 


ANALYSIS    OF    CONTENTS.  XI 
Sec.                                                                                                                                                PAGE. 

8.  Relation 41 

9.  Prescription  and  limitation 42 

10.  Accretion  and  i-eliction 48 

rules  for  measurement 44 

11.  Avulsion 4-T 

12.  Eiparian  titles 40 

13.  Dedication 47 

14.  Confirmation 48 

15.  Occupancy 48 

16.  Abandonment 49 

17.  Eminent  domain 50 

18.  Title  acquired  by  eminent  domain 51 

19.  Escheat   5  2 

20.  Confiscation 53 

21.  Forfeiture 54 

CHAPTER  V. 

SOURCES   OF   INFORMATION. 

Sec.   1.    Records 56 

defined 56 

dignity  of 56 

2.  Depositories  of  records 57 

3.  The  right  of  inspection  of  records 57 

4.  Doctrine  of  notice 59 

5.  Constructive  notice 59 

6.  Actual  notice GO 

7.  Registration 61 

8.  Effect  of  recording  acts C2 

9.  Loss  or  destruction  of  record 6 ' 

10.  Official  aids  to  search 64 

11.  Grantor  and  grantee  indexes 64 

12.  Notice  lis  pendens 65 

13.  Plaintiff  and  defendant  indexes 65 

14.  Tax  records 66 

15.  Official  certificates 66 

CHAPTER  Vr. 

INDICES   AND  REFERENCES. 

Sec.   1 .     Importance  of  indexes 67 

2.  Patent  systems 67 

3.  The  government  tract  book 6S 

index  compiled  from 69 

4.  Field  notes  of  government  surveys 69 

uses  of  in  abstracting 69 


XU  ANALYSIS    OF    CONTENTS. 

Sec.  TAGPJ. 

5.  The  original  entry 70 

method  of  arranging  books 70 

ilh\-tration  of  sample  page 70 

method  of  compihxtion 71 

6.  Document  number  index 71 

method  of  compilation 71 

illustration  of  sample  page 71 

7.  Long  form  entries 71 

8.  The  tract  index 1~ 

how  compiled 72 

sample  page 7;> 

9.  Irregular  index 74 

10.  Tax  index 74 

method  of  compilation 7-) 

sample  page l'> 

11.  Judgment  index 75 

sample  page , 76 

12.  Decrees  and  sales  in  chancery 76 

13.  Laying  out  the  books 76 

scale  for  indexing 77 

14.  Resume 77 

CHAPTER  VIL 

COMPILING   THE   ABSTllACT. 

Sec.    1.    The  extent  of  the  seai-ch 79 

2.  Continued 80 

3.  Making  the  chain 81 

4.  Formal  parts 82 

5.  The  caption ' 82 

for  general  examination 83 

for  assumption  of  title 84 

for  special  examination 84 

for  tax  abst  ract 84 

6.  Arrangement  of  the  abstract 84 

7.  Fullness  of  narra  tion 85 

8.  Examiners'  notes 86 

9.  Abbreviations 87 

10.  Letter  press  copies 87 

11.  Con Juding   certificate 88 

practical  example 89 

order  for  examinati  n 88 

CHAPTER  VIII. 

INCEPTION    OF    TITLE. 

Sec.  1.    Preliminary  stages  of  title 90 


ANALYSIS    OF    COXTFXTS.  XUl 

Sec.  PAGE. 

2.     Inceptive  raf>a=!nres  nndpv  tho  U.  S.  land  laws 91 

B.     Disposal  of  the  public  lands 91 

4.  Public  land  sales 92 

5.  Private  entry  of  lands 92 

origin  of  term 92 

entry,  how  made 93 

6.  Nature  of  the  title  conferred  by  entry 93 

7.  "What  lands  subject  to  entry 95 

8.  Pre-emption  entries 95 

9.  Nature  of  pre-emption  rights 97 

10.  Conveyances  before  entry 98 

11.  Graduation  entries 99 

12.  Homestead  entries 100 

13.  Rights  acquired  under  homestfad  acts 101 

14.  Tree  claims 101 

15.  Location  by  military  warrants 102 

16.  Land  scrip 103 

Virginia  military  scrip 103 

Indian  or  half-breed  scrip 103 

private  land  scrip 104 

agricultural  college  scrip 104 

17.  Swamp  land    grants 10") 

act  of  1849 105 

act  of  1850 105 

18.  School  lands 106 

19.  Railroad  and  internal  improvement  grants 107 

20.  Who  may  acquire  a  title 108 

21.  Inceptive  measures  in  the  abstract 109 

CHAPTER  IX. 

INITIAL    STATEMKNTS. 

Sec.   1.    The  government  entry ll*^ 

practical  form Ill 

2.  The  donative  act Ill 

practical  form 1 1'2 

3.  Continued,  section  sixteen 112 

practical  form 113 

pi'actical  form  for  lieu  land 113 

4.  Confirmations 114 

5.  Town  site  entries 115 

act  of  1864 115 

act  of  1865 115 

act  of  1807 116 

6.  The  receiver's  receipt 117 

practical  form 118 


Xiv  ANALYSIS   OF    CONTENTS. 

Sec.  i--^^'^" 

7,  State  lancl  sales 118 

commissioner's  receipt 119 

8.  Therootof  title 119 

CHAPTER  X. 

CONGRESSIONAL  AND   LEGISLATIVE   GRANTS. 

Sec.  1.     Legislative  grants  generally  consiilered 121 

2.  Nature  and  effect 121 

from  the  United  States 122 

from  the  State 122 

3.  Construction  of  legislative  grants 12^^ 

4.  Formal  requisites 124 

practical  form 124 

CHAPTER  XI. 

PATENTS. 

Sec.  1.    Patents,  defined 126 

2.  Patents  from  the  United  States 126 

formal  parts 127 

3.  Continued,  delivery 127 

patents  need  no  delivery 128 

take  eifect  by  registration 129 

4.  General  land  office  record 129 

its  object  and  purport 130 

5.  Operation  and  effect  of  patents 130 

its  evidence  of  governmental  action. .  131 

when  operating  only  as  a  quitclaim. . .  132 

6.  Continued 132 

by  what  laws  patents  construed 132 

purchaser  need  not  look  behind  patent 132 

but  is  chargeable  with  defects  upon  its  face 1C3 

7.  Formal  requisites 133 

abstract  of  patent 133 

8.  Patents  from  the  State 133 

classification  of  State  lands 133 

history  of  ^tate  titles 134 

to  what  State  patents  confer  title 135 

9.  State  patents,  continued 135 

10.     Formal  requisites  of  State  patents 136 

by  whom  issued 136 

CHAPTER  XII. 

SURVEYS,    TLATS   AND   SUBDIVISIONS. 

Sec.   1.    General  remarks 137 


ANALYSIS    OF    CONTEXTS.  XV 
Sec.                                                                                                                                                PAGK. 

2.  Divisions  of  the  public  domain l-)7 

townships l-'>8 

sections I'JS 

plan  of  township,  numbers  and  base  lines 1:39 

township  plats 139 

3.  Subdivision  of  sections 139 

illustration  of  legal  subdivisions 140 

illustration  of  fractional  section 141 

sketch  maps 142 

4.  "Rectangular  system  of  U.  S.  surveying 142 

principal  base  line  and  meridian. . .  142 

6.     Meander  lines 143 

6.  Plats  and  subdivisions ^ . . .  144 

7.  Form  il  requisites 14-5 

abstract  of  subdivision 146 

8.  Etfect  of  registration 147 

9.  Vacation  and  cancellation 147 

abstract  of  vacation 148 

10.     Dedication  by  plat 149 

distinguished  from  reservation 150 

CHAPTER  XIII. 

FORMAL  PARTS  OF  DEEDS. 

Sec.  1.     Operative  parts  of  a  deed 151 

2.  Names  of  parties 1."j2 

3.  Grantors 1.V2 

4.  Grantees l-")3 

5.  Nature  of  the  instrument 155 

6.  Date  of  instrument 155 

7.  Registration 156 

8.  Consideration 157 

9.  Etfect  of  consideration 157 

10.  Words  of  grant 15^ 

when  implying  covenants ]  59 

11.  Words  of  purchaser  and  limitation 160 

rule  in  Shelly's  case 160 

12.  Description  of  property 161 

13.  Description,  sufficiency I'il 

14.  Description,  construction •  l'',2 

15.  Special  recital 1 63 

16.  The  habendum. 1 63 

17.  Exceptions  and  reservations 1 64 

18.  Conditions  and  limitations 165 

19.  Covenants 1 66 

20.  P^xecution 16S 


XVI  ANALYSIS    OF   CONTENTS. 

Sec.  PACE. 

21.  Signahirc 109 

22.  Seal .109 

23.  Attestation 170 

24.  Acknowledgment. 171 

25.  Delivery 1 7:^ 

26.  Ancient  deeds 1  7-j 

27.  Stamps 176 

CHAPTER  XIV, 

EKRORS,  OMISSIONS   AND    DEFECTS. 

Sec.    1.     Error  generally 177 

2.  Defect  of  parties,  grantor 178 

3.  Defect  of  parties,  grantee 179 

4.  Disparity  of  dates ISO 

5.  Technical  plirases 181 

6.  Misdescription,  uncertainty 182 

7.  Misdescription,  omission 18  > 

8.  Misdescription,  quantity 183 

9.  Defective  covenants 184 

10.  Defective  acknowledgment 185 

11.  Continued 186 

certificates  of  conformity 187 

12.  Repugnancy 188 

CHAPTER  XV. 

CONVEYANCES   BY   INDIVIDUALS. 

Sec.    1.     Deeds  in  general 189 

2.  Deeds  poll  and  indentures 190 

3.  Construction  and  effect  of  deed 190 

4.  Validity 191 

void  and  voidable  distinguished 192 

latent  ambiguities 192 

5.  Warranty  deeds 192 

legal  import 192 

6.  Abstract  of  warrauly  deed 19:> 

practical   example 194 

7.  Notes 1 94 

8.  Quitclaim  deeds 19.j 

legal  import 195 

9.  Abstract  of  quitclaim  deeds 196 

10.  Effect  of  covenants  in  quitclaim  deeds 197 

11.  Special  warranty  deeds 193 

legal  effect 199 

12.  g'f atutory  forms -00 


ANALYSIS    OF    CONTENTS.  XV 11 

Sec.                                                                                                      r  ^GE. 

13.  Common  law  conveyances 200 

14.  Release 201 

15.  Contivmation 202 

IG.     Surrender '^02 

practical   example 2o:> 

17.  Assignment 204 

18.  Conveyances  mfuturo 204 

practical  example 200 

19.  Conveyances  of  special  interests  and  estates 2C6 

20.  Continued,  instances 207 

practical  example 209 

21.  Restrictive  and  conditional  conveyances 209 

22.  Prohibited  conveyances,  adverse  seizin 211 

23.  Continued,  fraudulent  conveyances 212 

24.  Conveyances  subject  to  incumbrance 212 

25.  Dedication  by  deed 213 

26.  Resulting  trusts 214 

27.  Re-records  and  duplicates 215 

practical  example 215 

CHAPTER  XVI. 

PAKTICULAR   CLASSES   OP   INDIVIDUAL,   CONVEYANCES. 

Sec.    1.     Marriage  settlements 217 

2.  Conveyances  to  husband  and  wife 218 

3.  Conveyances  between  husband  and  wife 219 

4.  Conveyances  by  married  women 220 

5.  Effect  of  wife's  conveyance 222 

6.  Continued,  acknowledgment 222 

7.  Release  of  dower 223 

practical  example 224 

8.  Joint  tenancies  and  tenancies  in  common 225 

9.  Partition  deeds 225 

practical  exa  mple 226 

10.  Partnership  conveyances 227 

11.  Corporate  conveyances ■. 228 

12.  Statutes  of  mortmain 230 

1 3.  Power  of  acquisition ;  user 230 

14.  Mun'cipal  corporations 231 

15.  Conveyances  to  corporations 232 

16.  Conveyances  by  corporations 233 

practical  example 2;^4 

17.  Continued;  execution,  acknowledgment 235 

practical  example 236 

18.  Record  uf  seal 257 

2 


XVlll  ANALYSIS    OF    CONTENTS. 

Sec.  PAGE. 

19.  Heirf?  at  law 2:^8 

20.  Post-obit  conveyances 2;:';9 

21.  Conveyances  liy  delegated   authority 239 

practical  example 240 

22.  Powers  of  attorney 241 

practical  example 242 

23.  Revocations 242 

24.  Substitution 243 

25.  Conveyances  in  trust 243 

26.  Declarations  of  trust 245 

practical  example 246 

■    27.     Removal  or  substitution  of  trustees 247 

23.     Resignation;  refusal  to  act 247 

CHAPTER  XVir. 

OFFICIAL   CONVEYANCES. 

Sec.  1.  Defined  and  distinguished 248 

2.  Official  deeds  generally 248 

3.  Recitals 249 

4.  Covenants 250 

5.  Sheriif' s  deed ;  on  execution 2 JO 

6.  Continued;  acknowledgment 251 

7.  Continued;  operation  and  effect , 252 

8.  Reformation 253 

9.  Statutory  sheriff's  deeds 253 

practical  example 253 

10.  Sheriff's  deed;  under  decree 254 

11.  Master's,  commissioner's,  and  referee's  deeds 254 

practical  example 255 

12.  Trustees 256 

13.  Transfers  of  the  legal  estate  by  trustees 257 

14.  Power  of  sale  and  trust  of  sale  distinguished 257 

15.  Trustee's  deeds 259 

practical  example 260 

16.  Mortgagee's  deeds 262 

17.  Executors  and  administrators 264 

18.  Executor's  deeds 264 

19.  Administrator's  deeds 265 

practical  example 266 

20      Administrator  with  will  annexed 268 

21.  Guardian's  deeds 269 

22.  Trustees  can  not  become  purchasers 270 

23.  Continued;  exceptions  and  qualifications 271 


ANALYSIS    OF    CONTENTS.  XIX 
CHAPTER  XYIII. 

ASSIGNMENTS,    INSOLVENCY    AND   BANKRUPTCY. 

PAGE. 

Sec.   1.     Assignments  gpnerally 273 

2.  Voluntary  assi.<rninents 274 

3.  Validity  of  assignments 27o 

4.  Formal  requisites 27-5 

5.  Title  of  assignee 27G 

6.  Construction  and  effect 277 

7.  Conflict  of  laws;  foreign  as-signmonts 278 

8.  Insolvency 278 

9.  Bankruptcy 279 

10.  Jurisdiction  and  pract'ce 279 

11.  Classification;  procedure 279 

12.  Nature  and  effect  of  bankrup'  cy 280 

13.  Bankruptcy  proceedings;  how  «liown 2*^0 

practical  example 281 

14.  The  assignment 282 

practical  example 282 

15.  Assignee's  deed 282 

practical  exiimple 2.'^o 

16.  Discharge  in  bankruptcy 2''o 

practical  example 2.:G 

CHAPTER  XIX. 

AGIIEEMENTS   FOR   CONVEYANCE. 

Sec.   1 .     Land  contracts  generally 287 

2.  Relation  of  parties  under  land  contracts 288 

3.  Effect  and  operation  of  the  contract 288 

4.  Nature  and  requisites 289 

5.  As  affected  by  the  recording  acts 200 

6.  Construction  of  land  contracts 290 

7.  Formal  parts 2  il 

abstract  of  agreement  to  deed 291 

8.  Assignment  of  the  contract 292 

9.  Performance;  sufficiency  of  deed  and  title 2U3 

10.  Bond  for  deed 295 

practical  illustration 295 

11.  Agreements  for  conveyance  by  will 295 

CHAPTER  XX. 

LEASKS. 

Sec.  1.     Nature  and  requisites 297 

2.    Formal  parts 298 

abstract  of  lease 299 


XX  ANALYSIS    OF    CONTEXTS. 

Sec.  PAOH. 

3.  Covenants  and  conditions oOO 

4.  Implied  covenants 301 

5.  Agricnltural  lands 301 

6.  Assignment  of  lease 302 

CHAPTER  XXI. 

MISCELLANKOUS  EVIDENCE  OF  AND  AFFECT  NG  TITLE. 

Sec.  1 .     General  remarks 304 

2.  Irregular  instruments 304 

3.  Municipal  ordinances 305 

practical  examjile 306 

4.  Operation  and  effect  of  ordinance  s 30(3 

5.  Municipal  resolutions 307 

6.  Official  certificates 308 

practical  example 3C9 

7.  Incorporeal  hereditaments 310 

8.  Easements  and  servitude  s 310 

9.  Party  wall  agreements 310 

practical  example 312 

10.  Letters 312 

11.  Affidavits 313 

practical  example 314 

12.  Continued;  general  requisites;  sufficiency 314 

18.     Unrecorded  evidence 315 

CHAPTER  XXII. 

MOKTGAGES. 

Sec.  1.    Nature  of  mortgn  ges 316 

2.  Different  kinds  of  mortgages 317 

3.  The  equity  of  redemption 318 

4.  Rights  of  mortgagor 319 

5.  Mortgages  as  affected  by  estoppel 320 

6.  Merger 321 

7.  Equitable  mortgages 322 

rules  for  dotf^rniining 322 

import  and  effect 32  3 

8.  Vendor's  liens 324 

9.  Mortgages  proper 325 

abstract  of 326 

10.  Statutory  forms 327 

11.  Uncertainty  or  error  of  description 327 

12.  Covenants  in  mortgages 328 

13.  Effect  of  special  covenants 329 

14.  Special  stipulations  and  coudltiona 329 


ANALYSIS    OF    CONTKNTS.  XXI 

Sec.  ^■^'^''''■ 

15.  Effect  of  informality '^^'0 

16.  Purchase  money  mortgages -^-jI 

practical  examples 3:!1 

17.  Mortgages  of  homestead Sol 

18.  Mortgage  of  after-acquired  property 333 

19.  Record  of  mortgages 3:j4 

20.  Notice  imparted  from  possession 3:M 

21.  Re-records 335 

22.  Trustdeeds 335 

practical  example 336 

23.  Power  of  sale S38 

24.  Assignment ''"^ 

25.  Operation  and  effect  of  assignments 340 

.  26.     Formal  requisites  of  assignmenis 340 

27.  Release  and    satisfaction 311 

28.  Form  and  requisites  of  relea-e '-^'^ 

practical  example 343 

29.  Release  by  trustee 343 

30.  Marginal  discharge 343 

practical  example 34  4 

31.  Foreclosure '^44 

32.  Proof  of  title  under  foreclosure 345 

CHAPTER  XXIII. 

"NVIIXS. 

Sec.    1.     Wills  generally 346 

2.  Nuncupative  wills .^ 347 

3.  Nature  of  testamentary  titles 347 

4.  Devises ^48 

5.  Operation  and  effect  of  devises 348 

6.  Validity  of  devises 349 

7.  Testamentary  capacity 349 

8.  Construction  of  wills 3)0 

9.  Repugnancy 3.)1 

10.  Descent  and  purchase •'■'! 

1 1 .  Words  of  grant 352 

12.  Words  of  purchase  and  limitation 353 

1:^.  Rule  in  Shelly's  case 3.55 

14.  Interpretation  of  particular  words  and  piirases 3.)5 

15.  Words  which  pass  real   estate 3  )7 

16.  Limitations  and  remainders 357 

17.  Devise  to  a  class 3-)8 

18.  (lift  of  the  income  of  realty 358 

19.  Devise  with  power  of  disposition 359 

20.  Indeterminate  devise S62 


Xxii  ANALYSIS    OF    CONTENTS. 

Sec.  TAOK. 

21 .  Devise  on  condition  precclont '''>"^> 

22.  Conditional  devise;  marriage -jG-' 

2-3.     Contingent   remainders <'>^^ 

24.  Contingent  reversion -jG-) 

25.  Devise  to  married    woman •^C)'-^ 

26.  Devises  to  executors  in  trust •f>6 

27.  Bequest  to  the  devise  by  description -^07 

28.  Precatory  trusts 3G8 

29.  Perpetuities 'j^iS 

30.  Lapsed  devise 369 

31.  Devises  for  the  payment  of  debts 3.0 

32.  Charges  on  lands  devised 370 

33.  The  residuary  clause 372 

34.  Codicils -. 372 

35.  Formal  requisites 373 

36.  Abstract  of  wills 374 

37.  Method  of  arrangement 376 

38.  Practical  examples 377 

proof  of  probate 378 

39.  Probate  of  wills 379 

40.  Effect  of  probate 379 

41.  Foreign  probate o% 

42.  Abstract  of  probate  proceedings 380 

practical  examples 382 

CHAPTER  XXIV. 

LTEXS,    CHARGES   AND   INCUMBRANCES. 

Ssc.    1.     Liens  generally 385 

2.  How  created 386 

3.  Operation  and  effect 386 

4.  Method  of  arrangement 386 

5.  Mortgages ,887 

6.  Dower 387 

7.  Judgments  and  executions 388 

8.  Judicial  and  execution  sales 388 

9.  Lis  pendens  and  attachment 388 

10.  Decedent's  debts 388 

11.  Taxes 388 

12.  Municipal  liens ,389 

13.  Official  bonds 389 

14.  Leases 390 

15.  Vendor's  liens 390 

16.  Mechanic's  lien liOl 

17.  Priority 392 

18.  Estate  to  which  lien  attaches 393 


ANALYSIS   OF    CONTENTS.  XXUl 

Sec.  PAGE. 

19.  Limitation  of  lien 394 

20.  Assignability 394 

21.  Foreclosure  of  lien 395 

CHAPTER  XXV. 

LIS  PENDENS  AND  ATTACHMENT. 

Sec.    1.     Doctrine  of  lis  j^^nxlens 396 

2.  Continued ;  effect  of  dismissal 397 

3.  Notice  lis  pendens 398 

practical  example 3<  i9 

4.  Property  drawn  incidentally  in  question 399 

5.  Attachment 400 

6.  Formal  requisites  of  attachment 4u0 

practical  example 4ul 

CHAPTER  XXVI. 

JUDGMENTS   AND  DECREES. 

Sec.    1.  Judgments  and  decrees;  defined  and  distinguished 403 

2.  Operation  and.  effect  of  judgments 404 

3.  Lien  of  judgments 404 

4.  Duration  of  lien 406 

5.  Priority 407 

6.  After- acquired  property 408 

7.  Formal  requisites  of  judgments 409 

practical  example 410 

8.  Subrogation 411 

9.  Satisfaction  and  discharge 411 

10.  Judgments  against  a  deceased  person 412 

11.  Exemptions 412 

12.  Decrees  classified  and  distinguished 412 

13.  Operation  and  effect  of  decrees 413 

14.  Decrees  rendered  on  constructive  notice 414 

15.  Lien  of  decrees 415 

16.  Formal  requisites  of  decrees 415 

17.  Abstract  of  decrees 516 

practical  example 417 

18.  Errors  and  defects 417 

19.  Operation  and  eittct  of  probate  decrees 419 

CHAPTER  XXVn. 

JUDICIAL  AND    EXECUTION  SALES. 

Sec.    1.     Judicial  and  execution  sales;  defined  and  distinguished 4'20 

2.     Execution  sales;  validity  and  effect 4l'I 


XXIV  ANAJA'SIS    OF    CONTENTS. 

Sec.  PAGE. 

3.  Title  under  execution  sale 42:3 

4.  When  the  title  vests 423 

5.  The  writ 424 

6.  The  levy 424 

7.  Notice  of  sale 425 

practical  example 426 

8.  Proof  of  publication 426 

practical  example 426 

9.  Execution  sale  as  affected  by  death 4l7 

10.  Exemptions 428 

11.  Judicial  sales;  validity  and  effect 428 

12.  Title  under  jadicial  sales 429 

13.  Rights  of  purchaser 430 

14.  Compelling  purchaser  to  take  title 430 

15.  Order  of  confirmation 432 

16.  Effect  of  confirmation 432 

17.  Certificate  of  sale 433 

practical  example;  by  sheriff 434 

practical  example;  by  muster 435 

18.  Assignment  of  certificate 436 

19.  Proof  of  title  under  judicial  and  execution  sales 436 

20.  Continued;  what  must  appear 438 

21 .  Probate  sales 439 

22.  Nature  and  requisites  of  probate  sales 440 

23.  Abstract  of  probate  sales 441 

practical  example 442 

CHAPTER  XXVIII. 

CHANCERY  RECORDS  AND  PROCEEDINGS. 

Sec.    1.     Chancery  proceedings  generally 444 

as  affected  by  codes 445 

2.  Authority  and  jurisdiction  of  chancery  courts 446 

3.  Authority  and  jurisdiction  of  probate  courts 447 

4.  Actions  and  proceedings  to  be  noticed 447 

5.  Jurisdiction  the  great  essential 448 

6.  Notice  afforded  by  chancery  records 449 

7.  Process 450 

8.  Formalities  of  a  summons 451 

9.  Service 452 

10.  Proof  of  service 453 

11.  Master's  and  referee's  reports 455 

12.  Verdicts 455 

13.  Abstract  of  chancery  proceedings 455 

practical  example 456 

14.  F]  aud,  accident  and  mistake 458 


ANALYSIS    OF    CONTENTS.  XXV 

Sec.  PAGE. 

15.  Injunctions 458 

16.  Ejectment;  origin  and  history 460 

17.  Operation  and  effect  of  eject  nient 461 

18.  Quia  timet 462 

19.  Partition 463 

practical    example 465 

20.  Specific  performance 466 

21.  Redemption 468 

22.  Foreclosure 468 

enumeration  of  methods 469 

23.  Dower 470 

24.  Divorce 471 

practical  example 472 

25.  Right  of  eminent  domain 472 

26.  Proceedings  for  condemnation  and  assessment 473 

27.  Construction  of  wills 474 

CHAPTER  XXIX. 

TAXES   AND   TAX    TITLES. 

&ec.    1.     Definition;  nature  and  scope  of  the  taxing  power 476 

2.  Subjects  of  taxation 477 

3.  Lien  of  taxes 478 

4.  Tax  titles 478 

requisites  and  effect 479 

5.  Nature  of  tax  titles;  dependent  or  independent 480 

6.  Proceedings  incident  to  taxation 4S0 

7.  Sale  for  non-payment 481 

practical  examples 483 

8.  Forfeitures 483 

9.  Tax  sales;  tax  payer  as  purchaser 4*^4 

10.  Rights  of  purchasers 485 

11.  Redemption 486 

12.  Certificate  of  sale 487 

practical  example 487 

13.  Tax  deeds 488 

14.  Continued;  statutory  modifications  of  common  law  rules 488 

15.  Formal  parts 489 

practical  examples 491 

16.  Effect  of  deed  as  evidence 461 

17.  Tax  deed;  possession;  limitation 493 

18.  Tax  abstracts 494 

CHAPTER  XXX. 

DESCENTS. 

Sec.    1.    Title  by  descent 405 


XXVI  ANALYSIS    OF    CONTENTS. 

Sec.  TAOE. 

2.  Nature,  operation  and  incidents  of  the  title 496 

3.  Inheritance  as  dependent  upon  seizin 497 

4.  Heirship;  its  rig-hts  and  privileges 498 

5.  The  line  of  succession 498 

6.  General  rule  of  descents 499 

7.  The  right  of  representation 499 

8.  Preferences 500 

9.  Who  may  take  by  descent;  aliens oOO 

10.  Continued;  adoptive  heirs 502 

11.  Ancestral  estates;  half  blood 502 

12.  Surviving  consorts 502 

1 3.  Coparceners 503 

14.  What  descends 503 

15.  How  affected  by  ancestral  covenants 503 

16.  Liability  for  ancestral  debts 504 

17.  Creditor's   liens 504 

18.  Equitable  conversion 505 

19.  Proof  of  heirship 506 

20.  Proof  of  death 507 

21.  Continued;  official  registration 503 

practical  example 509 

22.  Continued ;  probate  of  death 509 

23.  Proof  of  birth  and  legitimacy 510 

24.  Validity  of  descents 510 

25.  Abstract  of  descents 511 

example  of  pedigree 512 

26.  Continued;  probate  pioceedings 513 

practical  example 513 

27.  Settlement  without  administration 514 

28.  Escheat 5U 

CHAPTER    XXXI. 

ADVEKSE    TITLES. 

Sec.    1.     Adverse  title,  generally  considered 515 

2.  Adverse  conveyances 515 

practical  examples 516 

3.  Character  of  adverse  possession 518 

4.  Color  of  title 520 

5.  Adverse  possession  under  color  of  title 521 

6.  Constructive  possession 521 

7.  Adverse  possession  from  user 522 

8.  Naked  possession  without  claim 523 

9.  Tacking 523 

10.  Possession  as  notice 524 

11.  Who  may  acquire  adverse  title 524 


ANALYSIS    OF    CONTEXTS.  XXVII 

Sec.  PAGE. 

12.  Remainder -men 525 

13.  Reversioners 525 

14.  Tenants  in  common 525 

15.  Persons  under  disability 52>3 

16.  Adverse  rights  as  against  the  S.ate 520 

17.  Effect  of  adverse  possession 527 

18.  Proofs  to  support  title  by  adverse  possession 528 

CHAPTER    XXXIl. 

OPINIONS   OF    TITLE. 

Sec.    1.     Perusing  the  abstract 529 

Mr.  fcjugden's  views 529 

2.  Note  taking 531 

3.  Examination  of  the  munmients 532 

4.  Examination  of  deeds 533 

5.  Examination  of  legal  proceedings  and  judgments 535 

6.  Marginal  notes  and  requisitions 536 

7.  Continued;  English  and  American  methods  comp  red 537 

example  of  requisitions 538 

8.  Answers  to  requisitions 539 

9.  Analysis  of  title 540 

practical  example 54 1 

10.  Analytical  chains 543 

practical  example 544 

11.  Sketch  maps 545 

12.  Preservation  of  memoranda 546 

13.  Passing  the  title 546 

14.  What  constitutes  a  valid  title 547 

15.  Flaws 548 

16.  Clouds  upon  title 549 

17.  Inquiries  in  pais 551 

18.  Continued;  mechanic's  liens 552 

19.  Continued ;  homesteads 553 

20.  Printed  copies 553 

21.  Framing  oi^inions 554 

22.  Opinions  of  title 555 

practical  examples 556 

23.  Continued ;  certificates  of  title 557 

24.  Opinions  based  upon  the  abstract 558 

practical  example 560 

25.  Hypothetical  expressions 561 

26.  Oral  opinions 565 

27.  Liability  for  erroneous  opinions 563 


XXVUl  ANALYSIS    OF    CONTENTS. 

Sec.                                                                                                                                        PAGE. 
2S.     Conclusion 5Ci 

APPENDIX. 

New  England  abstracts 5G7 

English  analysis  of  abstract 568 


TABLE  OF  CASES. 


[the  figures  refer  to  the  pages.] 


Abbot  V.  Wilber,  37. 

Abbott  V.  Holway.  Admr.,  20G. 

Abbott  V.  Smelting  Co.,  229. 

Abell  V.  Lathrop,  18. 

Acer  V.  Wescott,  3,  5  ',  163. 

Adam  V.  Norris,  132. 

Adams  v.  Morse,  164. 

Adams  v.  Buchanan,  251. 

Adams  v.  Jones,  458. 

Adington  v.  Hefner,  242. 

Adrian  v.  Shaw,  18. 

Agricultural  Ass'n  v.  Neill,  176. 

Agricultural  Society  V.  Paddock,  233. 

Aiken  v.  R.  R.  Co.,  322. 

Akers  v.  Akers,  355. 

Albeev.  Ward,  437. 

Alexander  v.  Stewart,  523. 

Alexander  v.  State,  41. 

Allaire  v.  Allaire,  380,  381. 

Allen  V.  Hawley,  18. 

Allen  V.  Bates,  162. 

Allen  V.  Hollon,  198. 

Allen  V.  Sales,  251. 

Allen  V.  Woodruff,  290,  292. 

Allen  V.  Culver,  300. 

Allen  V.  Loring.  391. 

Allen  V.  Morris,  397. 

Allen  V.  McGaughoy,  422. 

Allen  V.  Smith,  460. 

Allen  V.  Armstrong,  489. 

Allison  V.  Hunter,  117. 

Allman  v.  Taylor,  429,  430. 

Almy  V.  Hunt,  388. 

Almond  v.  Almond,  399. 

Altes  V.  Hinckier,  478. 

Alton  V.  Transportation  Co.,  190. 


A 1  wood  V.  Mansfield,  397. 
Am.  Bible  Society  v.  Sherwood,  232. 
Ambrose  v.  Raley,  519. 
Amesti  v.  Castro,  48,  462. 
Amphlet  v.  Hibbard,  331,  332. 
Anderson  v.  McGowan,  268,  269. 
Anderson  v.  Culbert,  332. 
Anderson  v.  Tuck,  408. 
Anderson  v.  Kerns  Draining  Co.  476. 
Annan  v.  Baker,  493. 
Applegate  v.  Edwards,  406. 
Aquire  v.  Alexander,  526. 
Armstrong  v.  Ross,  221. 
Armstrong  v.  Lear,  379. 
Aimentrout'sExr.v. Gibbons, 324, 325. 
Arnold  v.  Arnold.  218. 
Arthur  v.  Cole,  364. 
Arthur  v.  Webster,  154,  228. 
Aston  V.  Galloway,  371. 
Astrom  v.  Hammond,  94. 
Atherton  v.  Fowler,  95. 
Atkins  V.  Kinman,  249. 
Atkins  V.  Hinman,  *^50,  478. 
Atkins  V.  Horde,  461. 
Atlanta  Mills  v.  Mason,  22. 
Atlantic  Dock  Co.  v.  Leavitt.  39. 
Attorney  General  v.  Garrison.  247. 
Aultman  v.  Obermoyer,  220. 
Austin  V.  Cambridgeport,  303   ^5. 
Austin  V.  Bainter,  457. 
Austin  V.  Wohler,  552. 
Avery  v.  Babc^ck.  409. 


Babbit  v.  Bow  en.  514. 
Bubcock  V.  Jones,  40!). 
Bachman  v.  Scpulwvbi 
(xxi.K) 


410. 


XXX 


TABLE    OF    CASES. 


Bajrnel  v.  Brodrick,  24,  25,  9:3,  117. 

Bailey  v.  Litten,  224. 

Baily  v.  Doolittle,  484. 

Bairdv.  Wolf,  94,  117. 

Baker  v.  Bridg-e,  o62. 

Baker  v.  Chandler,  406. 

Baker  v.  Hale,  523. 

Baker  v.  Hunt,  185. 

Baker  V.Scott,  354,  355. 

Baker  V.  Swan,  520. 

Balcum  v.  Wood,  332. 

Baldwin  v.  Pool,  288. 

Bales  V.  Perrv,  259. 

Baliou  V.  Lucas,  196. 

Ballame  v.  Forsythe,  484 

Ballance  v.  Tesson,  122. 

Bank  v.  Anderson,  340. 

Bank  v.  Burns,  411. 

Bank  v.  Clapp,  333. 

Bank  V.  Green,  18. 

Bank  v.  Humphreys,  432,  455. 

Bank  v.  Kora-ight,  234. 

Bank  v.  Lanahan,  318. 

Bank  v.  Lyon-:,  18. 

Bank  v.  Ogden,  44. 

Bank  v.  Rice,  179. 

Bank  V.  Ward,  8,  556,  557,  564. 

Bank  v.  Willis,  274. 

Banker  v.  Caldwell.  7. 

Barber  v.  Roarbeck,  18. 

Barbour  v.  Manf  'g  Co.  343. 

Barbour  v.  Gates,  176. 

Barclay  v.  Plant,  219. 

Bardsley  v.  Hines,  453. 

Barnhizel  v.  Ferrell,  31. 

Barheydt  v.  Barheydt,  362,  363. 

Barker  v.  Barker,  439,  447. 

Barker  v.  Komins,  379. 

Barker  v.  Dayton,  13. 

Barker  v.  Ins.  Co.  452,  453. 

Barnard  v.  Cam  pan.  63. 

Barnet  v.  Mendenhall,  18. 

Barnet  v.  Proskaner,  172. 

Barnet  v.  Lachman,  154,  228. 

Barney  v.  Keokuk,  135. 

Barrett  v.  Messuer,  18. 


Barron  v.  Mullin,  422. 
Barron  v.  Robbins,  463. 
Barry  v.  Gamble,  132. 
Barter  v.  Greenleaf,  158. 
Bartlett  V.King,  351. 
Barton  v.  Moss,  484. 
Bass  V.  Estill,  63. 
Bassett  v.  Bassett,  158. 
Bassett  v.  Lockard,  423. 
Batchelder  v.  Keniston,  45. 
Bates  V.  Norcross,  40. 
Bates  V.  Spooner,  413. 
Bates  V.  Shrader,  497. 
Bauer  v.  Gattmanhausen,  70. 
Baugher  v.  Merryman,  324. 
Baxter  v.  Arnold,  145. 
Bayliss  v.  Williams,  158. 
Beacroft  v.  Strawn,  358. 
Beach  v.  Beston,  274. 
Beall  V.  White,  334. 
Beal  V.  Blair,  183. 
Beatty  v.  Kurtz,  150. 
Beatty  v.  Mason,  518. 
Beatty  v.  Dixon,  446. 
Beauford  v.  Duncan,  306. 
Becker  v.  Howard,  485. 
Bedell  v.  Shaw,  523. 
Beecher  v.  Wetherby,  107. 
Beecher  v.  Hicks,  160,  208. 
Beekraan  v.  Frost,  334. 
Belcher  V.  Branch,  269. 
Belden  v.  Meeker,  380,  416,  417. 
Bell  V.  Duncan.  133. 
Bell  V.  Hearne,  102. 
Bell  V.  Boston,  185. 
Bell  V.  Twilight,  198. 
Bell  V.  Humphrey,  350. 
Bellows  V.  Todd,  95. 
Beman  v.  Green,  290. 
Bemis  v.  Becker,  289. 
Benkert  v.  Jacoby,  359. 
Bennett  v.  Whitman,  447. 
Bennett  v.  Nichols,  444,  448. 
Bennett  v.  McF.idden.  446. 
Bennett  v.  Waller,  446. 
Benson  v.  Morrow,  135. 


TAI'LE   OF  CASES. 


XXXI 


Benson  v.  Humplireys,  181, 

Bergen  v.  Ebey,  458. 

Berlin  v.  Melhorn,  430,  431. 

Berry  v.  Derwart,  161. 

Besore  v.  Dosh,  487. 

Bessemer  v.  People,  451,  452. 

Bethel  v.  Bethel,  25,    193,  428,  433. 

Betsinger  v.  Chapman,  510. 

Bicknell  v.  Bicknell,  293. 

Biglow  V.  Forest,  54. 

Biglow  V.  Wilson,  400. 

Binkert  v.  Wabash  R'y,  478,  481. 

Birdsall  v.  Hewlett,  371. 

Bishop  V.  O'Connor,  249,  2C8. 

Bi.shop  V.  Morgan,  162. 

Bishop  V.  Schneider,  63,  65. 

Black  V.  Gregg,  .331. 

Blackwell  v.  Barnett,  341. 

Blacklaws  v.  Miller,  506. 

Blair  v.  Osborne,  154. 

Blair  v.  Vanblarcura,  .365. 

Blake  v.  Stone,  354. 

Blake  v.  Fish,  155. 

Blakely  v.  Bestor,  490,  493. 

Blagge  V.  Miles,  362. 

Blanchard  v.  Maynard.  350. 

Blanchard  v.  Bissell,  307. 

Blanchard  v.  Brooks,  198. 

Blodget  V.  Hitt,  426,  441. 

Blood  V.  Blood.  63. 

Blood  V.  Light,  422. 

Board  man  v.  Bourne,  489. 

Boerum  v.  Schenck,  292. 

Bohn  V.  Barrett's  Exr.  353,  308. 

Bogardus  v.  Trinity  Ch.  522. 

Bogert  V.  Elizabeth,  550. 

Bogy  V.  Shoab,  198. 

Bonnell  v.  Holt,  391. 

Booker  v.  Warrill,  219. 

Boorman  v.  Sunnuoks,  1.35. 

Booth  V.  Cook,  172. 

Boothroyd  v.  Engle,  169. 

Boreel  V.  Lawton,  301. 

Borland  v.  Walrath.  172. 

Bostick  V.  Blades,  364. 

Butsiord  V.  O'Connor,  441,  453. 


Botsford  V.  Wilson,  19G. 
Bouriand  v.  Peoria,  60. 
Bowers  v.  Oyster,  293. 
Bowers  v.  Kuscher,  98. 
Bowers  v.  Andrews,  183. 
Bowen  v.  Bond,  410. 
Bowen  v.  Preston,  521. 
Bowen  v.  Bonner,  424. 
Bowinv.  Sutherland,  453. 
Bowman  v.  Lee,  518,  522. 
Bowman  v.  Thompson,  479. 
Bowman  v.  Whettig,  493. 
Bowman  v.  People,  423. 
I'owman  v.  Cockerill,  489. 
Boyland  v.  Boyland,  452. 
Boynton  v.  Hubbard,  239. 
Bozza  V.  Rowe,  433. 
Bracket  v.  Gil  more,  488. 
Bradford  v.  Howell,  100. 
Bradstreet  v.  Clark,  210. 
Bradshaw  v.  Bradshaw,  181. 
Bradshaw  v.  Bradbury,  162. 
Brady  v.  Spruck,  195. 
Brain  v.  Renshaw,  181. 
Brame  v.  Craig,  17. 
Brannan  v.  Bran nan, 188. 
Brannan  v.  May,  503. 
Branger  v.  Lucy,  504. 
Brantly  v.  Chuby,  272. 
Brattle  Sq.  Ch.  v.  Grant,  303. 
Braxton  v.  Bressler,  44. 
Breckenridge  v.  Tood,  155,  175. 
Brennan  v.  Willson,  277. 
Brewer  v.  Watson,  57. 
Brewster  v.  Madden,  98. 
Brice's  Estate,  510. 
Bridge  v.  Wellington,  160,  193. 
Briggs  V.  Davis,  277. 
Brine  v.  Ins.  Co.  25. 
Brinkerhoff  v.  Lansing,  460. 
Britton  v.  Lorentz,  276. 
Brock  V.  Frank,  3S0. 
Bnmley  v.  Goodrich,  192. 
Bronson  v.  Kukuk,  94. 
Bronson  v.  Kinzie,  25. 
Brodie  v.  Watkins,  159,  193. 


xxxn 


TABLE    OF    CASES. 


BronSL'ld  v.  Wilson,  350. 

Brown  v.  Brown,  192. 

Brown  v.  Smith,  395. 

Brown  v.  Phil.  Bank,  172. 

Brown  V.  Barker,  452. 

Brown  v.  Rose,  528. 

Brown  v.  Thompson,  176. 

Brown  v.  Coal  Oil  Co.  195. 

Brown  v.  Pforr,  241. 

Brown  v.  Brown,  364. 

Brown  v.  Throckmorton,  97. 

Brown  v.  United  States,  54. 

Brown  v.  Kimbrough,  222. 

Brown  v.  Chamberlin,  277. 

Brown  v.  Parker,  412,  428. 

Browne  v.  Ferrea,  422.- 

Browning  v.  Howard,  430. 

Browning  v.  Harris,  332. 

Brownfield  v.  Dyer,  453. 

Brookbank  v.  Kemard,  220. 

Brooks  V.  Bruyn,  521,  522. 

Brooks  V.  Rooney,  425. 

Brooks  V.  Curtiss,  22. 

Broome  v.  Monck,  289. 

Bruce  v.  Luke,  39. 

Bryant  v.  Christian,  360. 

Bryan  v.  Ramirez,  172.  187. 

Bryne  v.  Morehouse,  163. 

Buchan  v.  Hart,  247. 

Buchanan  v.  Curtis,  47. 

Buck  V.  Collins,  38. 

Buckingham  v.  Jacques,  28,  502. 

Buckingham  v.  Wesson,  265. 

Buell  V.  Irwin,  461. 

Buffalo  V.  Webster,  305. 

Bull  V.  Willard,  287. 

Bunce  v.  Reed,  427. 

Burch  V.  Carter,  391. 

Burch  V.  Burch,  348,  371. 

Burdick  v.  Wentworth,  94. 

Burdick  v.  Briggs,  93. 

Burgess  v.  Gray,  97. 

Burke  v.  Stokely,  412. 

Burlen  v.  Shannon,  38. 

Bur  eigh  v.  Clough,  16,  358,  359. 

Burlington  University  v.  Barrett,374. 


Burnet  v.  Pratt,  225. 

Burnet  v.  Burnet,  375. 

Burnsidev.  Merrick,  227. 

Burrows  v.  Bailey,  270. 

Burton  v.  LeRoy,  170. 

Burtnors  v.  Keran,  39. 

Burwell  v.  Jackson,  293. 

Busch  V.  Donohue,  97,  123. 

Busch  V.  Huston,  484. 

Bussey  v.  Hardin,  432. 

Bushnell  v.  Harford,  459. 

Bustamete  v.  Bescher,  453. 

Bull  V.  Bull,  367. 

Bullock  V.  Wilson.  93. 

Butcher  v.  Rogers,  159. 

Butler  V.  Hoog,  4  3. 

Butler  V.  Davis,  183. 

Butler  V.  Roys,  225. 

Butler  V.  Huestis,  160,  350,  354,  356. 

Button  V.  Am.  Tract  Society,  367. 

Button  V.  Schroyer,  288. 

Byrne  v.  Roberts,  453. 

Caal  V.  Higgins,  14. 

Cabeen  v.  Muckunridge,  60. 

Cable's  App.^il,  369. 

Cady  V.  Eighmey.  99. 

Cahill  V.  Palmer.  519. 

Calcord  v.  Alexander,  182. 

Caldwell  v.  Caldwell,  351. 

Caldwell  V.  Larainer.  3&4. 

Callins  V.  Lavelle,  159,  182,  190,  191, 

207. 
Callaway  v.  Fash,  172,  187. 
Calumel;  Co.  v.  Russell,  185. 
Cambridge  Bank  v.  Delano,  59,  60. 
Cameron  v.  Supervisors,  51. 
Cameron  v.  Logan,  423. 
Camp  V.  Smith,  99. 
Camp  V.  Mates,  459. 
Campbell  v.  Johnson,  182,  184. 
Campbell  v.  Campbell,  214,  347. 
Campbell  v.  McCahn,  448. 
Campbell  v.  Ware,  502. 
Canal  Commissioners  v.  People,  47. 
Canfield  v.  Bostwick,  248. 


TABLE   OF    CASES. 


XXXIU 


Cannon  v.  Brame,  413. 
Cappoek  v.  Smith,  314. 
Capehart  v.  Dowery,  430,  431. 
Carbine  v.  Pringle,  60. 
Cardell  v.  Ryder,  220. 
Cary  v.  Whitney,  288. 
Carey  v.  Rae,  21. 
Carlisle  v.  Tindall,  463. 
Carlisle  v.  United  States,  13. 
Carman  v.  Johnson,  91,  93. 
Carpenter  v.  Dexter,  185. 
Carpenter  v.  Sherfy,  200,  409. 
Carpenter  v.  Browning.  351. 
Carpenter  v.  PJowen,  387. 
Carpenter  v.  Mitchell,  390. 
Carpenter  v.  Denoon,  525. 
Carr  v.  Rising,  18. 
Carr  v.  Ellison,  301. 
Carr  v.  Carr,  322. 
Carroll  v.  SafFord,  94. 
Carroll  v.  E.  St.  Louis,  223. 
Carroll  v.  Carroll,  380,  381. 
Carroll  v.  Gil  Hon,  518. 
C.irson  V.  Murray,  20. 
Carver  V.  Southain,  200. 
Case  V.  Codding,  214. 
Casebolt  v.  Donaldson,  17. 
Carter  v.  Wise,  195,  196. 
Cate  V.  Craynor,  351,  357. 
Catlin  V.  Ware,  159. 
Catlins  v.  Decker,  524. 
Cavanaugh  v.  Peterson,  334. 
Cemetery  v.  R.  R.  Co.  51. 
Chadbourne  v.  Mason,  425. 
Chidlisv.  R.  R.  Co.  52,  473. 
Challefoux  v.  Ducharme,  37,  48,  93, 

111,  121. 
Chambers  v.  Jones,  266. 
Chambers  v.  Cox,  332. 
Champaign  v.  Harman,  231,  232. 
Chandler  v.  Chandler,  204. 
Chandlery.  Spear,  489. 
Chandler  v.  Cheney,  219. 
Chapm  V.  Gilbert,  369,  370. 
Chapin  v.  Curtenins,  270. 
Chapman  v.  Lcc,  8. 


Charles    River    Bridge  v.  Warren 

Bridge,  473. 
Charles  v.  Waugh,  478,  482. 
Chase  v.  Ross,  2G8. 
Chase  v.  Hoaney,  8. 
Chase  v.  Wh  ting.  250. 
Chase  v.  Peck,  292. 
Chatard  v.  Pope,  91,  92. 
Chatham  v.  Bmdford,  65. 
Cheney  v.  G  ok",  467. 
Chicago  V.  Yulcan  Iron  Works,  211. 
Chicago  V.  Larned,  477. 
Chicago,  etc..  R.  R.  Co.  v.  Joliet,48. 
Chiles  v.  Conley's  Heirs,  160. 
Chiniquy  V.  Catholic  Bishop,  180, 186. 
Chope  V.  Lorman,  38. 
Chouteau  v.  Eckhart,  121. 
Christian  v.  Newberry,  321. 
Christie  v.  Gage,  525. 
Christy  v.  Dana,  99. 
Chubb  V.  Johnson,  27. 
Church  V.  Gilman,  128. 
Church  V.  Furniss,  454. 
Church  V.  Smith,  288. 
Churchill  v.  Reamer,  190. 
Claiborne  v.  Hohnes,  63. 
Clapp  V.  Stoughton,  365. 
Clappv.  Bromagham,  520. 
Clark  V.  Lo  t,  471. 
Clark  V.  Tennison,  358. 
Clark  V.  Marshall,  8,  564. 
Clark  V.  Graham,  25,  159. 
Clark  V.  Baker,  40,  99,  333. 
Clark  V.  Coolidge,  40. 
Clark  V.  Wethy,  162. 
Clark  V.  Hall,  94. 
Clark  V.  Clark,  219,  257. 
Clark  V.  Manfg.  Co.  235. 
Clark  V.  Sawyer,  251. 
Clark  V.  Henry,  317,  323. 
Clarke  v.  Clarke,  524. 
Clark  V.  Boorman's  Kx'rs,  354. 
Clark  v.  Huges.  525. 
Claunch  v.  Allen,  199. 
Clayton  v.  Mevritt.  242. 
Clayton  V.  Wardcll,  510. 


XXXIV 


TABLE    OF    CASES. 


Clery  v.  Hinman,  483. 
Close  V.  Sannn,  521. 
Coats  V.  T,  ft,  162,  1S2 
Cobble  V.  Tomlinson,  227. 
CoUirn  V.  Ames,  134. 
Coburn  v.  EUenwood,  124. 
Cockerel  V.  Coleman,  498. 
Coffing  V.  1  aylor,  340. 
Cofran  v.  Cofran,  306. 
Cohen  v.  Sharp,  550. 

Cole  V.  Kimball,  168. 

Coles  V.  Withers,  325. 

Coleman  v.  Allen,  97. 

Coleman  v.  R.  R.  Co.  229. 

Coleman  v.  Billings,  521. 

Collins  V.  Bartlett,  127. 

Collins  V.  Marcy,  210. 

CoUamer  v.  Langdon,  319. 

CoUamore  v.  Wilder,  505. 

Collier  v.  Blake,  256. 

Collier  v.  Grimsly,  359. 

Colliers'  Case,  363. 

Colson  V.  Thompson,  467. 

Comer  v.  Baldwin,  174. 

Commonwealth  V.  Alger.  12,  13. 

Commonwealth  v.  Tewksbury,  13. 

Commonwealth  v.  Jackson,  174. 

Commonwealth  v.  Andre,  41. 

Commissioners  v.  Babcock,  65. 

Commissioners  v.  Rush,  150. 

Commissioners  v.  Brackenridge,  478. 

Corastock  V.  Crawford,  33. 

Comstock  V.  Smith,  195,  197. 

Conant  v.  Little,  470. 

Conklin  v.  Foster,  428. 

Conner  v.  Whitehouse,  340. 
Conroy  v.  Perry,  394. 

Cook  V.  Sinnamon,  180. 

Cook  V.  So.  Pk.  Comr's.  51. 
Cook  V.  Barr,  245. 
Cook  V.  Clark,  330. 
Cooley  V.  Scarlett,  416. 
Coolidge  V.  Learned,  43. 
Coons  V.  Throckmorton,  453. 
Cooper  V.  Ord,  23,  520. 
Cooper  V.  Roberts,  107,  113. 


Cooper  V.  Cooper,  219. 

Cooper  V.  Whitney,  316. 

Corbin  V.  Healy,  164. 

Corbin  v.  Sullivan,  62. 

Corning  v.  Troy  Factory,  522. 

Corning  v.  Gould,  50. 

Corwin  v.  Merritt,  266. 

Cast  V.  Rose,  352. 

Costigan  v.  Gould,  155. 

Castly  V.  Driver,  452. 

Cotton  V.  Reed,  458. 

Covenhoven  v.  Shuler,  351. 

Covington  v.  Stewart,  527. 

Cowan  V.  Foster,  440. 

Cowell  V.  Col.  Springs  Co.  166,  210. 

Cowles  V.  Rickett,  274. 

Cowles  V.  Marble,  316,  318,  338. 

Cowl  V.  Varnum,  391. 

Cox  V.  James,  145. 

Cox  V.  Cox,  500. 

Coyce  V.  Stovell,  4'i9. 

Craddock  v.  Stewarts'  Admr.  250. 

Craig  V.  Radford,  501.  ^ 

Craig  V.  Leslie,  370. 

Craig  V.  Swinerton,  373. 

Cram  v.  Colting,  478,  479- 

Cramer's  Appeal,  28,  502. 

Crane  v.  Reeder.  211. 

Crane  v.  Turner,  340. 

Crary  v.  Goodman,  520.  521. 

Crispen  v.  Hannavan,  24,  519. 

Crittenden  v.  Leitensdorfer,  424. 

Crockett  v.  McGuire,  60. 

Crocker  v.  Pierce,  400. 

Crocker  v.  Ballangee,  191. 

Croft  v.  Bunster,  158,  317. 

C;omwell  v.  Ins.  Co.  272. 

Cronise  v.  Hardt,  265. 

Crooker  v.  Crooker,  65. 

Crooke  v.  Andrews,  5-50. 

Crook  V.  Liensford,  18. 

Croode  v.  Ingraham,  20. 

Crosby  v.  Parker,  181. 

Crowell  V.  Johnson,  433. 

Cuendet  v.  Lohmer,  275. 
Cummings  v.  Cummlngs,  439. 


TABLE    OF    CASES. 


XXXV 


Cunningham  v.  Wrenn,  458. 
Cunningham  v.  Curtis,  162. 
Cunningham  v.  Ashley,  94. 
Curd  V.  Lacklanci,  422. 
Curry  v.  Hinman,  451, 
Curry  v.  Spencer,  376. 
Curtis  V.  Root,  408. 
Curtis  V.  Smith,  247,  256. 
Cushaman  v.  Glover,  243. 
Cutler  V.  Davenport,  278,  340. 
Cutler  V.  Tufts,  188. 
Cutright  V.  Stanford,  504. 
Curwen  v.  Taylor,  28. 

D'Armond  v.  Dul)ose,  176. 
Dale  V.  Lincoln,  154. 
Dalton  V.  Lamburth,  460. 
Dalton  V.  Lucas,  493,  494. 
Danforth  v.  Lowiy,  245. 
Daniel  v.  Purvis,  122. 
Daniel  v.  Leitch,  213. 
Daniel  v.  Hodges,  399. 
Daniel  v.  Whartenby,  353. 
Darst  V.  Bates,  155. 
Davenport  v.  Whistler,  174,  287. 
Davidson  v.  Van  Pelt,  293. 
Davis  V.  McDonald,  223. 
Davis  V.  Savings  Bank,  212. 
Davis  V.  Alvord,  392,  394. 
Davis  V.  Life  Ins.  Co.  398. 
Davis  V.  Hamilton,  324,  407. 
Davis  V.  Ransom,  424. 
Davis  V.  Henderson,  293. 
Day  V.  Wilder,  524. 
Dayton  v.  Mintzer,  439,  440. 
De  Camp  v.  Dobbins,  231. 
De  Wolf  V.  Hayden,  40,  197. 
De  Pan  v.  New  Albany,  476. 
Deerfield  v.  Arms,  44,  45. 
Deford  v.  Dcford,  349. 
Deininger  V.  McConnell,  174. 
Delancy  v.  Ganong,  300. 
Delaunay  v.  Burnet,  98. 
Delevan  v.  Duncan,  293,  294,  548. 
Dement  v.  Thompson,  424. 
Denton  v.  Jackson,  232, 


Dennett  v.  Dennett,  356. 
Den  V.  Troutman,  343. 
Dennis  v.  Maynard,  389. 
Devries  v,  Haywood,  40. 
Dequindre  v.  Williams,  42. 
Dew  v.  Dellinger,  288. 
Dewey  v.  McLain,  54. 
Dickenson  v.  Breed  an,  493. 
Dickson  v.  Randal,  219. 
Dickson  v.  Rawson,  274. 
Dickins  v.  Barnes,  182. 
Dikes  v.  Miller,  46,  49,  50. 
Dill  V.  Wisner,  370. 
Dills  V.  Hubbard,  520,  522. 
DiUman  v.  Wentworth,  21. 
Dillon  V.  Brown,  228. 
Dillingham  v.  Fisher,  96. 
Dingley  v.  Bank,  324. 
Dingley  v.  Boston,  52. 
Dinkins  v.  Bowers,  392,  394. 
Dix  V.  Palmer,  453. 
Dixon  V.  Merritt,  38, 
Dodd  V.  Williams,  40,  557,  563. 
Doe  V.  Hardy,  264. 
Doe  V.  Governeur.  501. 
Dye  V.  Jackson,  270. 
Dogan  V.  Griffin,  479, 
Doide  V.  Vodicka,  145, 
Dole  V.  Thurlow,  170,  172. 
Donald  v,  Gregory,  38. 
Donaldson  v.  Holmes,  393. 
Donaldson  v.  Hibner,  41, 
Donahue  v.  Chase,  263, 
Donnelly  v.  Turner,  351. 
Dooly  V.  Walcott,  61. 
Doolittle  V.  Jenkins,  391. 
Doran  v.  Mullen,  109. 
Dorr  v.  Harrahan,  166, 
Dorland  v.  Magilton,  525. 
Dorsey  v.  Kendall,  429. 
Douglass  V.  Ilanston,  406. 
Douglass  V.  Dangorfield,  487, 
Dou.seman  v.  Hooe,  111.  122,  416. 
Douthitt  V.  Stinson,  152,  154. 
Dou  V.  Dou,  348. 
Downey  v.  Borden,  359,  360. 


XXX  VI 


TABLK    OF   CASES. 


Downing  v.  Marslmll,  258. 
Downer  v.  R.  R.  Co.  48. 
D.ake  V.  Kinsell,  17. 
Drayton  v.  Marshall,  317. 
Draper  v.  Bryson,  252. 
Drew  V.  Smith,  162. 
Drusadow  v.  Wilde,  359. 
Di^den  v.  Hanway,  214. 
Dublin  V.  Chadbourn,  380. 
Dudley  v.  Sumner,  297. 
Dunbar  v.  Newman,  458. 
Duncan  v.  Duncan,  474. 
Ducat  V.  Chicago,  228. 
Dunkin  v.  Wilson,  414. 
Dunklee  v.  Crane,  392,  552,  553. 
Dugan  V.  FoUett,  430,  499,  450,  525. 
Dunlap    V.   Gjllatin    Co.  389,  478, 

481. 
Dunlap  V.  BuUard,  303. 
Dunlap  V.  Dunlap,  212. 
Dunleith  v.  Reynolds,  477. 
Dunn  V.  Ketchum,  314. 
Dunning  v.  Ocean  Nat.  Bank.  269. 
Dunnmg  v.  V&n  Dusen,  361,  332,  533. 
Dupont  V.  Davis,  162. 
Durett  V.  Briggs,  249. 
Darfee  v.  Pavitt.  215. 
Durham  v.  Heaton,  406,  427. 
Duryea  v.  New  York,  165. 
Dwight  V.  Overton,  277. 
Dyer  v.  Clark,  227. 
Dyer  v.  Homer,  212. 

Eaton  V.  Trowbridge,  175. 
Eaton  V.  Simmonds,  213. 
Edgerton  v.  Bird,  23,  520. 
Edwards  v.  Bibb,  350. 
Edwards  V.  Rays,  211. 
Eidemiller  v.  Wyandotte  City,  51. 
Egery  v.  Woodard,  173. 
Eldridge  v.  Pierci',  17. 
Eldred  v.  Sexton,  92,  95. 
Elder  v.  Deyby,  321. 
Elmdorf  v.  Lockwood,  19,  20,  224. 
Elliott  V.  Sleeper,  176. 
Elliott  V.  Armstrong,  245. 


Elliott  v.  Morris,  245. 
Elliottv.  Pearle,  521. 
Ellison  V.  Winslow,  59. 
Ellssvorth  V.  R.  R.  174. 
Emory  v.  Keighan,  341. 
Enfield  v.  Permit,  41. 
Errissmann  v.  Errissmann,  471. 
Ethell  V.  Nichols,  440,  441. 
Evans  v.  Davis,  425. 
Evans  v.  Ashley,  433. 
Evans  v.  Edwards,  158. 
Evertson  v.  Sawyer,  435. 
Ewins  v.  Gordon,  291,  295. 

Fairman  v.  Beal,  360. 

Fannin  Co.  v.  Riddle,  41. 

Farrington  v.  Wilson,  93. 

Farisl^v.  Coon,  41,  134,  521. 

Farmers'    Bank    v.  Merchant,    388. 

Farmers'  Bank  v.  Peters,  431. 

Farnham  v.  Hildreth,  417,  418. 

Farnsworth  v.  Cole,  470. 

Farwell  v.  Rogers,  211. 

Faucett  v.  Faucett,  256. 

Faulk  V.  Coburn,  249. 

Faulke  v.  Bond,  526. 

Feaster  v.  Fleming,  423. 

Feit  v.  Vannata,  356. 

Frlecher  v.  Peck,  49. 

Fell  V.  Young,  175,  266. 

Fellows  Bank  v.  Banton,  334. 

Fenn  v.  Holmes,  24,  132. 

Fenton  v.  Reed,  510. 

Fergus  v.  Woodward,  423,  429. 

Ferris  v.  Crow,  451. 

Fetrow  v.  Merriweather,  158. 

Field  V.  Seabury,  122. 

Finley  v.  Brown,  489. 

Finney  v.  Boyd,  404. 

Fire  Ins.  Co.  v.  Doll,  241. 

Fisher  v.  Fields,  15,  244. 

Fisher  v.  Hall,  173. 

Fisher  v.  Forbes,  215. 

Fisher  V.  Provin,  218. 

Fish  V.  Lightner,  404. 

Fishback  v.  Weaver,  430. 


TABLE    OF    CASES. 


XXXVU 


Fisk  V.  Flores,  163,  249. 
Fi>-k  V.  Kei:og?,  441. 
Fisk  V.  Tolman,  212. 
Fitch  V.  Willard,  294. 
Fitch  V.  Boyer,  437,  438. 
Fitzgerald  v.  Fitzgerald,  173. 
Fitzgerald  v.  Spain,  4S4. 
Fitzgibbon  V.  Lake,  269. 
Fitzhugh  V.  Maxwell,  288. 
Flege  V.  Garvey,  18. 
Fleming  v.  McHale,  214. 
Fleming  v.  Johnson,  430. 
Fletcher  v.  Holmes,  317,   331,  332, 

387. 
Flinn  v.  Owen,  474. 
Flint  V.  Clinton  Co.  234,  307. 
Florence  v.  Hopkins,  526. 
Floyd  V.  Herring,  266. 
Fogg  V.  Clark,  357. 
Foley  V.  Harrison,  111. 
Foley  V.  McDonald,  442. 
Foltz  V.  Prouse,  498. 
Fonda  v.  Sage,  550. 
Fontaine  v.  Savings  Bank,  174. 
Ford  V.  Wilson,  521. 
Forsyth  v.  Small,  47. 
Forest  v.  Jackson,  160. 
Foster  v.  Evans,  462. 
Foster  v.  Young,  39. 
Foubly  V.  Foubly,  197. 
Foulks  V.  Pegg,  400. 
Fowle  V.  Merrill,  263. 
Fowler  v.  Shearer,  153. 
Fox  V.  Phelps,  362. 
Fox  V.  Turtle,  427. 
Frazer  v.  Peoria  Co.  365. 
Frazerv.  Lee,  271. 
Frances'  Estate,  350,  356. 
Franklin  Co.  v.  Savings  Inst.  231. 
Franklin  v.  Palmer,  461. 
Frederick  v.  Haas,  214. 
Frederick  v.  Pacquette,  439. 
Freedman  v.  Goodwin, 
Fremont  v.  Flower,  131. 
French  v.  Crosby,  20. 
French  v.  Edwards,  249. 


French  v.  Burns,  318, 
Frink  v.  Darst,  197. 
Frisbie  v.  Whitney,  97. 
Froneberger  v.  Lews,  271. 
Frost  V.  Beekman,  63. 
Frost  V.  Deering,  223. 
Fugate  V.  Pierce.  51 ),  521,  522. 
Fuller  V.  Carr,  184. 
Fuller  V.  Jillett,  167. 
Fuller  V.  Fellow,  183. 
Fulton  V.  Hill,  351. 
Fulton  V.  Moore,  433. 
Funk  V.  Eggleston,  360,    361,    363, 
372,  533. 

Gadberiy  v.  Sheppard,  210. 

Gage  V.  Schroder,  4-13. 

Gaines  v.  Hale,  94. 

Galaway  v.  Malchon,  327,  334. 

Gale  V.  Kinzie,  45. 

Gale  V.  Wilson,  213. 

Gallagher's  Appeal,  371. 

Galloway  v.  Finley,  133. 

Galpin  v.  Abbott,  63. 

Gammon  v.  Hodges,  64. 

Gambert  v.  Hart,  564. 

Gans  V.  Eenshaw,  548. 

Gardener  v.  Moore,  331. 

Garder  v.  Collins,  28. 

Gardiner  v.  Miller,  43,  527. 

Gardner  v.  Com.  Nat.  Bk.  275,   278. 

Gardner  v.  Jaques,  252. 

Gardner  v.  Eberhart,  434. 

Gardner  v.  Grannis,  175. 

Garnett  v.  Garnctt,'  152. 

Gamsey  v.  Rogers,  330. 

Garret  v.  Mass,  153. 

Gas  Co.  V.  San  Francisco,  307. 

GaskiU  V.  Badge,  63. 

Gates  V.  Labeaume,  275. 

Gates  V.  Caldwell,  167. 

Gault  V.  Woodbridge,  425. 

Gay  V.  Walker,  164.  165. 

Gayetty  v.  Bethune,  43. 

Gaylord  v.  Dodge,  19. 

Gavin  v.  Shuman,  493. 


XXXVIU 


TABLE    OF    CASES. 


Geary  v.  Simmons,  404,  41;^. 
Gebhart  v.  Reeves,  307. 
Gebhard  v.  Sattler,  621. 
Geekie  v.  Kirby  Co.  493. 
George  v.  Kimball,  212. 
German  Ins.  Bk.  v.  Nunes,  275. 
Gernet  v.  Lynn,  356. 
Geyer  v.  Wentzel,  353. 
Gibbs  V.  Thayer,  198,  199. 
Gibbons  v.  Hoag,  263,  328,  338. 
Gibson  V.  Chouteau,  42,  132,  526. 
Gigos  V.  Cochran,  290,  467. 
Gilbert  V.  Chapin,  353,  368,  369. 
Gilbert  v.  Holmes,  241. 
Gilchrist  v.  Rea,  269. 
Giles  V.  Lyon,  454. 
Gillett  V.  Gatfney,  62. 
Gillett  V.  Neaganza,  460. 
Gilkey  v.  Hamilton,  264,  265. 
Gilpin  V.  Hollengsworth,  352. 
Gissey  v.  R.  R.  Co.  52. 
Glancy  v.  Elliott,  484. 
Glass  V.  Hurlbut,  552. 
Gocklard  v.  Perkins,  400. 
Godfrey  v.  Bradley,  107. 
Godfrey  V.  Alton,  149. 
Goodel  V.  Hibbard,  15. 
Goodrich  v.  Lambert,  354. 
Goodman  v.  Randall,  169. 
Goodwin  v.  Goodwin,  271. 
Goodwin  v.  Baldwin,  341. 
Gorman  v.  Stanton,  156. 
Gossard  v.  Fergu^en,  433. 
Gossett  V.  Kent,  154. 
Goudy  V.  Hall,  440. 
Gould  V.  Mather,  257. 
Graff  V.  Middleton,  195. 
Graham  v.  Graham,  39. 
Granger  v.  Avery,  44. 
Grant  v.  Davenport,  306. 
Grant  v.  Fowler,  52. 
Grantern  v.  Rosecierrance,  454. 
Gray  v.  Ulrich,  171,  172. 
Gray  v.  Hayes,  208. 
Gray  v.  Blanchard,  210. 
Gray  v.  Brignardello.  429. 


Gray  v.  Gray,  471. 

Grayson  v.  WedtUe,  441. 

Graves  v.  Buren,  489. 

Graves  v.  Coutant,  391. 

Green  v.  Liter,  129. 

Green  v.  Blanchard,  10,  35. 

Green  v.  Slayter,  396,  399. 

Green  v.  Pulsford,  539. 

Greenby  v.  Kellogg,  167. 

Greenleaf  v.  Bebee,  393. 

Greenwood  v.  Murray.,  380. 

Gridley  v.  Hopkins,  150. 

Gridley  v.  Watson,  266. 

Gridley  v.  Gridley,  370. 

Gridley  v.  Philips,  266. 

Griffin  v.  Rogers,  274. 

Griffin  V.  Proctor,  332. 

Grignon's  Lessee  v.  Astor,  93,  123, 

447. 
Grimes  v.  Orrand,  180. 
Grimstone  v.  Carter,  324. 
Griswold  V.  Smith,  551. 
Grogan  v.  San  Francisco,  123,   307. 
Groner  v.  Smith,  170. 
Grove  v.  Gather,  393. 
Grube  v.  Wells,  519. 
Guild  V.  Richards,  166. 
Guild  V.  Hall,  409. 
Guion  V.  Pickett,  247. 
Gulf  R.  R.  Co.  V.  Owen,  524. 
Gulden  v.  O'Bryne,  330. 
Gunton  v.  Zantzinger,  430. 
Guyer  v.  Wookey,  460. 

Hackett  v.  Callender,  551. 
Hadden  v.  Shoutz,  190. 
Hahn  v.  Kelly,  438. 
Hairston  v.  Jandon,  289. 
Haldeman  v.  R.  R.  Co.  52. 
Hall  V.  Ashby,  211. 
Hall  V.  Jarvis,  37,  111,  122. 
Hall  V.  Leonard,  154,  180. 
Hall  V.  Bumpstead,  185. 
Hall  V.  Chapman,  440. 
Hall  V.  Hall,  348,  380. 
Hall  V.  Dennison,  277. 


TABLE   OF    CASES. 


XXXIX 


Hall  V.  McDuff,  292. 

Hall  V.  Law,  520. 

Hallahan  v.  Herbert,  393. 

Halloran  v.  Whitcomb,  40. 

Halleck  v.  Guy,  433. 

Hallett  V.  Wylie,  299.  300. 

Hallyburton  v.  Carson,  373. 

Hallas  V.  Bell,  521. 

H  milton  v.  Lubkee,  263. 

Hamilton  v.  Doolittle,  195. 

Hamilton  v.  Valiant,  486. 

Hamilton  v.  Wright,  520,  523. 

Hancock  v.  Wentwortli,  21. 

Handv.  AVinn,  221. 

Hanford  v.  Blessing,  324. 

Hannahs  V.  Felt,  400. 

Hanson  v.  Armstrong,  4G0,  462. 

Hinson  v.  Vernon,  476. 

Hardin  v.  Crate,  155,  174. 

Hardin  v  Osborne,  186,  284. 

Hardin  v.  Jones,  463. 

Harding  v.  Hale,  213. 

Harding  v.  Strong,  462. 

Harman  v.  Oberdorf'er,  174. 

Harnage  v.  Berry.  528. 

Harper  v.  Rowe,  437. 

Harrer  v.  Waldner,  219. 

Harris  Case,  213. 

Harris  Estate,  500. 

Harris  v.  Glenn,  IS. 

Harris  v.  Lester,  314. 

Harrington  v.  Fish,  87.  171,  1S5. 

Harrington  v.  Williams,  4G3. 

Harrington  v.  Fc^tner,  330. 

Harrison  v.  Boring,  150. 

Harrison  v.  Phillips'  A  ademy,  150. 

Harris  n  v.  Simmons,  179. 

Harriman  v.  Gray,  195. 

Harryman  v.  Star,  429. 

Hart  V.  Lyon,  311. 

Hart  V.  Gregg,  239. 

Harttbrd  Ore  Co.  v.  Miller,  225. 

Hartshorn  v.  Dawson,  186. 

Harvey  v.  Ledbetter,  214. 

Hask-li  V.  Sevier,  330. 

Hastings  v.  Johnson,  424. 


Hatch  V.  R.  R.  Co.,  50,  51,  473. 
Hatch  V.  Hatch,  128. 
Hatch  V.  Bates,  158. 
Haughwout  V.  Murphy,  379. 
Havens  v.  Sherman,  421. 
Hawkv.  McCulIough,  150.  192. 
Hawkins  v.  Chapman,  160. 
Hawkins  v.  Hawkins,  433. 
Haworth  v.  Huling,  416. 
Hawley  V.  Northampton,  369. 
Haxton  v.  Coarse,   498. 
Hayden  v.  Bucklin,  396.  398,  449. 
Hayes  v.  Livingston,  41. 
Hayes  v.  Stiger,  432. 
Haynes  v.  Bourn,  13,  497. 
Haynes  v.  Boardman,  523. 
Haydock  v.  Stow,  289. 
Hay  ward  v.  Ormsbee,  91. 
Haywood  v.  Collins,  452. 
Hazel  V.  Hagan,  360. 
Headley  v.  Gaundry,  842. 
Heaton  v.  Fryberger,  153. 
Hearst  v.  Pugol,  458. 
Hectv.  Spears.  391. 
Hemin'jfway  v.  Scales,  218. 
Hemphill  v.  Davies,  97.. 
Hemstreet  v.  Burdick,  241,  212. 
Henderson  v.  Ford,  242. 
Henderson  v.  Whitinger,  268. 
Hendrickv.  Cleveland,  447. 
Hendley  v.  Baccus,  452. 
Henly  v.  Hotaling,  324. 
Henning  v.  Punnet,  430. 
Henstis  v.  Johnston,  447. 
Herman  v.  Doming,  327,  334. 
Hetzel  V.  Barber,  17. 
Heuser  v.  Harris,  356. 
Hewes  v.  Reis,  478,  481. 
Hey  ward  v.  New  York,  52. 
Hickman  v.  Quinn,  208. 
Hickox  V.  Greenwood,  393. 
Hicks  v.  Skinner,  423. 
Hickman  v.  Perrin,  334. 
Highee  v.  Rice,  62. 
High  tower  v.  Rigsby,  301. 
Hiyhtower  v.  Handlin,  424. 


xl 


TABLE   OF    CASES. 


Hildreth  v.  Thompson,  424. 
Hill  V.  Franklyn,  17. 
Hill  V.  Treat,  33,  847. 
Hill  V.  Epley,  59. 
Hillv.  Miller,   127. 
Hill  V.  Ressegien,  294. 
Hillis  V.  Hillis,  372. 
Himes  v.  Keighblinger,  174. 
Hines  v.  Perkins,  325. 
Hinkley  v.  Greene,  23. 
Hinman  v.  Warren,  134. 
Hinsdale  v.  Thornton,  251. 
Hinson  v.  Adrian,  469, 
Hiss  V.  McCabe,  186. 
Hoard  v.  Hoard.  441. 
Hochlander  v.  Hochlander,  452. 
Hoffman  v.  Stigers,  219. 
Hoffman  v.  Felt,  294. 
Holbrook  v.  Dickinson,  479,  482. 
Holbrook  v.  Debo,  193,  199. 
Holder  v.  Mounl,  504. 
Holdane  v.  Cold  Spring,  213, 
Hollaway  v.  Gallaway,  375. 
Holland  v.  Holmes,  294,  518. 
Holm  V.  Wust,  8. 
Holmes  v.  Seely,  21. 
Holmes  v.  R.  R.  Co.  50. 
Holmes  v.  Janet  Moore,  208. 
Holmes  V.  Carondolet,  461. 
Holmes  v.  Shaver,  422. 
Holmes  v.  McGinty,  339. 
Holmes  v.  Evans,  290. 
Holmes  v.  Mead,  366,  368. 
Hooker  v.  De  Palos,  467. 
Hoodly  V.  Stephens   25. 
Hooper  V.  Scheimer,  117. 
Hopkins  v.  McCann,  495. 
Hoppough  V.  Struble,  461. 
Hoppin  V.  Doty,  522. 
Hopping  V.  Burnam,  425. 
Hopson  V.  Commonwealth,  356. 
Horn  V.  Cole,  40. 
Hornbeck  v.  Westbrook,  154. 
Horner  v.  Zimmerman,  212. 
Hosmer  v.  Campbell,  262. 
Hot  Springs  Cases,  95. 


Hotchkiss  V.  Cutting,  432. 

Houck  V.  Yates,  143. 

Hough  V.  Land  Co.  231,  232. 

Houghton  V.  Hardenburg,  123. 

Housley  v.  Lindsay,  430. 

Houx  V.  Batteen,  169. 

How  V.  Mortell,  458. 

Howard  v.  Howard,  522. 

Howe  V.  Thayer,  65. 

Hcwe  V.  Williams,  183. 

Howland  v.  Blake,  173, 

Howland  v.  Cemetery  Assoc'n,  523. 

Howerter  v.  Kelly,  452. 

Hoy  V.  Allen,  172. 

Hoyt  V.  Kimball,  166,  210. 

Hoyt  V.  Swar,  220. 

Huber  v.  Huber,  220. 

Huber  v.  Gazley,  150. 

Hubbard  V.  Bell,  44. 

Hudson  V.  Putnej%  523. 

Hudson  V.  Poindexter,  170. 

Huebsch  v.  Schell,  158,  321. 

Hughes  V.  Washington,  265. 

Hughes  V.  Watt,  250,  438. 

Huls  V.  Bunten,  251. 

Humbert  v.  Trinity  Ch.  519,  522. 

Hunt  V.  Rowley,  69. 

Hunt  V.  Hunt,  43. 

Hunt  V.  Johnson,  158,  219. 

Hunt  V.  Amidon,  166. 

Hunt  V.  Bridge  Co.  230. 

Huntt  V.  Towusend,  257,  259. 

Hunter  v.  Vaughn,  247. 

Hunter  v.  Buckner,  3^35. 

Hunting  v.  Walter,  431. 

Hurley  v.  Estes,  318. 

Husbands  v.  Jones,  400. 

Huston  V.  Seeley,  222. 

Hutchins  v.  Carleton,  193. 

Hutchinson  v.  R.  R.  Co.  192. 

Hutton  V.  Williams,  43.3. 

Hyam  v.  Edwards,  503. 

Hyde  V.  Olds,  277. 

Hyde  v.  Tanner,  505. 

Hydraulic  Co.  v.  Loughry,  407. 


TAI'LE    OF  CASES. 


XII 


I.  C.  R.  R.  Co.  V.  Stewar^  238. 

111.  Land  &  Loan  Co.  v.  Bonner,  510. 

In  re  Gas  Co.  51. 

Jn  re  McLean,  58. 

In  re  Lewis,  274. 

In  re  Muller,  280. 

Indianapolis  R.  R.  Co.  v.  Ross,  523. 

Ingle  V.  Jones,  269. 

Ins.  Co.  V.  Norton,  54. 

Ins.  Co.  V.  Dake,  65. 

Ins.  Co  V.  Stewart,  212. 

Irving  V.  Brownell,  519. 

Irwin  V.  Dixon,  149. 

Isham  V.  Bennington  Co.  225. 

Isler  V.  Brown,  399. 

Ivy  V.  Clawson,  456. 


Jackson  v. 
Jackson  v. 
Jackson  v. 
Jackson  v. 
Jackson  v. 
Jackson  v. 
Jackson  v. 
Jackson  v. 
Jackson  v. 
Jackson  v. 
Jack- on  v. 
Jackson  v. 
Jackson  v. 
Jackson  v. 
Jackson  v. 
Jackson  v. 
Jackson  v. 
Jackson  v. 
Jackson  v. 
Jackson  v. 
Jackson  v. 
Jackson  v. 
Juckson  v. 
Jackson  v. 
Jackson  v. 
Jackson  v. 
Jackson  v. 
Jackson  v. 
Jackson  v. 


Tngraliam,  12. 
Hart,  12. 

Vanderheyden,  20. 
Elston,  61. 
Warren,  65. 
Cary,  155, 181. 
Schoonmaker,  155. 
Bard,  155. 
Leek,  157. 
Dillon,  158. 
Meyers,  160,  190. 
Perkins,  174. 
Hudson,  190. 
Rosvelt,  191. 
Sisson,  208. 
Henry,  212. 
Campbell,  234. 
Bush,  252. 
Harsen,  297. 
Delecroix,  298. 
Allen,  298. 
Bull,  320. 
Roberts,  321,  490. 
Devitt,  320. 
McChesney,  324. 
Robbins,  359. 
Williams,  405. 
Esty,  4SS. 
Morse,  488. 


Jackson  v.  Green,  501. 
James  v.  Moore,  10. 
James  v.  Stiles,  178. 
James  v.  James,  349. 
Jamison  v.  Fopiana,  307. 
Jamison  v.  Perry,  524. 
.lanvrin  v.  Fogg,  176. 
Jassey  v.  White,  300,  3G1,  533. 
Jecks  V.  'Pausing,  13. 
Jeffers  v.  Radcliif,  33. 
Jelks  V.  Barrett,  265. 
Jenkins  v.  Valtz,  17. 
Johnson  v.  Mcintosh,    12,  49. 
Johnson  v.  U.  S.  41. 
Johnson  v.  Bantock,  159. 
Johnson  v.  Shaw,  175. 
Johnson  v.  Montgomery,  223. 
Johnson  v.  Bush,  236. 
Johnson  v.  Corbett,  289. 
Johnson  v.  Mendenhall,  294. 
Johnson  V.  Hubbeli,  296. 
Johnson  v.  Hanston,  317. 
Johnson  V.  Stagg,  334. 
Johnson  v.  Carpenter,  340. 
Johnson  v.  Dodge,  467. 
Jollitf-  V.  Jollift;  472. 
Jones  V.  Johnson,  45. 
Jones  V.  R.  R.  Co.  166. 
Jones  V.  Franklin,  167. 
Jones  V.  Monroe,  211. 
Jones  V.  Clifton,  217. 
Jones  V.  Carter,  .  40. 
Jones  V.  Scott,  449,  251. 
Jones  V.  Wood,  287. 
Jones  V.  Brewer,  330. 
Jones  V.  Bacon,  359. 
Jones  V.  Doss,  391. 
Jones  V.  liapham,  392. 
Jones  V.  Devore,  479. 
Jordan  v.  Bradshaw,  251. 
Joseph  v.  Biglow,  150. 
Jumel  v.  Jumel,  213. 

Karnes  V.  Harper,  415. 
Kaufman  V.  Whii.  y,  2D. 
Kay  V.  Irving,  3JU. 


xli 


TABLE    OF    CASES. 


Kayle  v.  Kavanaii^'li,  293. 

Kayser  v.  Heavenrich,  275. 

Kparney  v.  Vaughn,  192. 

Keating  v.  Keating,  471,472. 

Keegan  v.  Geraghty,  31,  32,  502. 

Keeler  v.  Keeler,  447. 

Keen  v.  Preston,  274. 

Kelly  V.  Hendricks,  41. 

Kelly  V.  Transportation  Co.  231,232. 

Keller  v.  Brickey,  122. 

Kennedy  v.  Municipality  No.  2,  45. 

Kennedy  v.  Merr'am,  418. 

Kennedy  v.  jSTorthrup,  458. 

Kent  V.  Welch,  167. 

Kentv.  Can  trail,  200. 

Ken^  V.  Atlantic  DeLaine  Co.204,206. 

Kerfoot  v.  Breckenridge,  466. 

Kerr  v.  Dougherty,  349. 

Kerr  v.  Birnie,  174. 

Kille  V.  Ege,  174. 

Kimball  v.  Blaisdell,  199. 

Kimra  V.  Weippert,  218. 

King  V.  Lea,  222. 

King  V.  Whiton,  249. 

King  V.  Ruckman,  288,  290. 

King  V.  Y.  M.  Assn.  390. 

King  V.  Kent's  heirs,  440. 

King  V.  Blood,  451, 

Kingman  v.  Barton,  277. 

Kinsley  v.  Ames,  338. 

Kinsman  v.  Loomis.  195. 

Kirkland  v.  Cox,  245. 

Kister  v.  Reeser,  164. 

Kleppner  v.  Laverty,  356. 

Knapp  V.  Brown,  393. 

Kneeland  v.  Van  Valkenburgh,  181. 

Knox  V.  Brady,  222. 

Knox  V.  Leidgen,  479. 

Knox  V.  Cleveland,  493. 

Koehlerv.  Ball,  432. 

Koelle  V.  Knecht,  310. 

Korn  V.  Cutler,  357. 

Kruger  v.  Knot,  489. 

Kruse  v.  Wilson,  163,  188,  253. 

Kruse  V.  Scrips,  70. 

Kruson  v.  Kruson,  460. 


Kurtz  V.  Sponable,  339. 

Labereev.  Carleton,  158. 

La  Framboise  v.  Crow,  19,  222. 

Lake  v.  Gray,  488. 

Lamar  Co.  v.  Clements,  149. 

Lamar  v.  Turner,  163. 

Lametti  V.  Anderson,  301. 

Lammers  v.  Nissen,  44.  144. 

Lambv.  Davenport,  99,  333. 

Lamb  v.  Wakefi  Id.  168,  206. 

Land  v.  Keirn,  404,  413. 

Landents  v.  Brant,  252. 

Lane  v.  Brock,  153. 

Lane  v.  Deberham,  257. 

Lane  v.  Gould,  521. 

Langsdale  v.  Foster,  428. 

Langdeau  v.  Hanes,  115,  122. 

Lanier  v.  Booth,  21. 

Lansing  v.  Smith,  135. 

Laramore  v.  Minish,  518. 

Lassell  v.  Powell,  421. 

Lathrop  v.  Brown,  405. 

Lathrop  v.  Snell,  199. 

Lathrop  v.  Am.  Emig.  Co.  413. 

Laughiin  v.  Freara,  179. 

Laverty  v.  Moore,  521. 
Lawe  v.  Hyde,  154. 
Lawrence  v.  Farley,  174. 
Lawrence  v.  Ball,  341. 
Lawrence  v.  Belger,  405. 
Lawrence  v.  Fast,  409. 
Lawrence  v.  Englesby,  419. 
Leazure  v.  Hillegas,  231. 
LeBeau  v.  Armitage,  48. 
Leeraing  v.  Sherratt,  358. 
Leese  v.  Clark,  131. 
Lef'evre  v.  Lefevre,  368,  369. 
LeFrancev.  Richmond,  170. 
Leitch  V.  Wells,  65,  449. 
Leiterv.  Speppard,  15. 
Leland  v.  Wilson,  249. 
LeMoyne  v.  Quimby,  266. 
LeRoy  v.    Jamison,    127,  123,  129, 

130. 
Leupold  V.  Kruse,  18. 


TABLE    OF    CASES. 


xliii 


Levi  V.  Thompson,  110. 
Lewis  V.  Darling,  871. 
Lewis  V.  Overby,  170. 
Lewis  V.  Appeal,  38. 
Lickv.  Ray,  551. 
Light  V.  West,  487. 
Lindsey  v.  Bates,  391 . 
Lindsey  v.  Thompson,  38. 
Lillard  v.  Euckers,  208. 
Littlejohn  v.  Egerton,  17. 
Littleton  v.  Giddings,  59. 
Lockett  V.  James,  20. 
Logan  V.  Steel,  40. 
Logansport  V.  Dunn,  150. 
Long  V.  Hewitt,  31. 
liong  V.  Wagoner,  161. 
Long  V.  Shelby  Co.  305. 
Longv.  Mostyn,  332. 
Long  V.  Weller,  431. 
Long  V.  Barkei',  44-1. 
Long  V.  Burnett,  490. 
Looney  v.  Adamson,  223. 
Loughridge  v.  Bowland,  63. 
Lovingston  v.  St.  Clair  Co.  44. 
Luce  V.  Durham,  350. 
Lyon  V.  Marsh,  360. 
Lyon  V.  Kain,  178,  496. 
Lytle  V.  Arkansas,  95. 

McAbee  v.  Mazzuchelli,  136. 
McAlister  v.  Butterfield,  350. 
McAllister  v.  Plant,  338. 
McAllister  v.  McAllister,  367. 
McArthur  v.  Browder,  132. 
McCabe  v.  Raney,  40. 
McCarley  v.  Supervisors,  170. 
McCarty  v.  Carter,  393. 
McChesney  v.  Brown's  Heirs,  212. 
McLean  v.  McBean,  504. 
McClellan  v.  Darrah,  467. 
McClintic  V.  Ocheltree,  218. 
McClintock  v.  Rogers,  69. 
McClurken  v.  Logan,  394. 
McClurken  v.  Detrich,  467. 
McCombie  v.  Davis,  395. 
McCormick  v.  Sullivant,  25, 


McCormick  v.  Huse,  144. 
McCurdy  v.  Canning,  213. 
McDaniel  v.  Johns,  36. 
McDermid  v.  Russell,  451. 
McDonald  v.  Gregory,  38. 
Mclntire  v.  Benson,  276. 
Mclntyre  v.  Storey,  47, 446. 
McGan  v.  O'Neil,  456. 
McGarrahan  v.  Mining  Co.  127, 130. 
McGoon  V.  Scales,  25. 
McGrew  v.  McCarty,  393. 
McGuire  v.  VanPelt,  338. 
McKinney  v.  Stewart,  31. 
McKinney  v.  Settles,  150. 
McKinzie  v.  Steele,  40. 
McLaughlin  v.  McLaughl'n,  367. 
McLaughlin  v.  Ihmsen,  334. 
McLouth  V.  Hurt,  62. 
McMicken  v.  U.  S.  90. 
McMillan  v.  Warner,  18. 
McNeil  V.  Kendall,  303. 
McQuiddy  v.  Ware,  526. 
McQuie  V.  Peay,  330. 
McVey  v.  McQuality,  324. 
McWhorterv.  McMahon.  289. 
Mackv.  Metzler,  317,  341. 
Mackay  v.  Bloodgood,  170. 
Madden  v.  Barnes,  391. 
Magruder  V.  Esmay,  117. 
Magness  v.  Arnold,  18  >. 
Magill  V.  Hinsdale,  240. 
Mahar  v.  O'Hara,  348. 
Mahoney  v.  Middleton,  462. 
Main  v.  Cumston,  311. 
Ma-  deville  v.  Welch,  292. 
Malconi  v.  Allen,  330. 
Mallory  v.  Mallory,  214. 
Mallory  v.  Horan,  20,  40,  223. 
Manderschid  v.  Dubuque,  149. 
Mann  v.  Best,  196. 
Manley  v.  Gibson,  150. 
Mansfield  v.  Hoagland,  423. 
Mapesv.  Scott,  118. 
Marburg  v.  Cole,  218. 
Marling  v.  Marling,  406. 
^Lnrshall  v.  Marshall,  456. 


xliv 


TABLE    OF    CASES. 


Marshman  v.  Conkh'n,  41G. 
Martin  v.  Martin,  215. 
Martin  v.  Beasley.  26G. 
Martin  v.  Dryden,  388. 
Martin  v.  Williams,  419. 
Martin  v.  Judd,  548. 
Martin  v.  Zallerbach,  40. 
Marvin  v.  Smith,  20,  224,  245. 
Matney  v.  Graham,  252. 
]\Iatthews  v.  Skinner,  229. 
Matter  of  Gilmer,  429. 
Matfox  V.  Hightshue,  40. 
Mash  V.  Russell,  332. 
Masheimer  v.  Uslemim,  507. 
Mason  v.  Osgood,  268. 
Mason  v.  Ainsworth,  340. 
Mason  v.  Brock,  153. 
Mason  v.  Jones,  350. 
Mastin  v.  Halley,  185. 
Maul  V.  Rider,  62. 
Maxwell  v.  Jonesbro,  305. 
May  V.  Baker,  400. 
Maybury  v.  Ruiz,  469. 
Mayo  V.  Libby,  37,  122. 
Mayo  V.  Wood,  38. 
Mayor,  etc.,  v.  McKee,  481. 
Mayor,  etc.,  v.  R.  R.  Co.  123. 
Meader  v.  Norton,  48. 
Meach  v.  Fowler,  155. 
Meachan  v.  Williams,  60. 
Meagher  v.  Thompson,  2^1. 
Mears  v.  Howarth,  44 1-,  446. 
M.  E.  Churdi  V.  Hoboken,  47, 
Meek  v.  Bunker,  424. 
Meek  v.  Breckenridge,  21. 
Meeker  v.  Wright,  219. 
Mehan  v.  Williams,  392. 
Megerle  v.  Ashe,  97,  122. 
Meivin  v.  Wad  del,  527. 
Melvin  v.  Whiting,  43. 
Mendenhallv.  Treadway,  458. 
Meridithv.  Little,  414,  449. 
Merrill  v.  Bickford,  371. 
Merrill  v.  Emery,  360. 
Merrill  v.  Burbank,  308. 
Merrill  v.  Burbauk,  158. 


Merrill  v.  Mon^gomol7,  233,  453. 
Merritt  v.  Merritt,  17. 
Men-itt  v.  Disney,  IGO. 
Merritt  v.  Brantly,  363. 
Messerschmidt  v.  Baker.  336. 
Meufoille  v.  Stewart,  313. 
Meyer  v.  McDougal,  268,  505. 
Meyers  v.  Buchanan,  64. 
Meyers  v.  Croft,  95,  98. 
Meyers  v.  Ladd,  163. 
Meyers  v.  Anderson,  354. 
Meyers  v.  Rasback,  445. 
Middleton  v.  Smith,  161. 
Middleton  v.  Findla,  169. 
Middleton  Sav.   Bk.   v.   Bacharach, 

485. 
Millard  v.  McMullen,  526. 
Miller  v.  Bledsoe,  498,  504. 
Miller  V.  Handy,  451. 
Miller  v.  Sherry,  396. 
Miller  V.  Aldrich,  329. 
Miller  v.  Wilson,  252,  422. 
Miller  v.  Ewing,  195. 
Miller  v.  Marx,  18. 
Miller  v.  Lapham,  22. 
Miller  v.  Willi  ms,  27. 
Miller  v.  Hepburn,  45. 
MiUett  V.  Peas^  453. 
Miners  Difch  Co.  v.  Zellerbach,  236. 
Mining  Co.  v.  Herkimer,  229. 
Mitchell  V.  Pe.tee,  40. 
Mitchell  V.  Haven.  250. 
Mitchell  V.  Burnham,  340. 
Mitchell  V.  Wood,  405. 
Mitchell  V.  Rob -rtson,  461. 
Mitchell  V.  Williams,  476. 
Mix  V.  French,  504. 
Moffitt  V.  Moffitt,  440. 
Moiston  V.  Hobbs,  167. 
Monaghan  v.  Small,  431. 
Moiitagub  V.  Dawes,  338. 
Montgomery  v.  Johnson,  162,  440. 
Montgomery  v.  Dorion,  240. 
Mooers  v.  White,  373. 
Mooney  v.  Cooledge,  165. 
Moore  v.  Jordan,  98. 


TABLE    OF    CASES. 


xlV 


Moove  V.  Wilkinson,  11-1. 
Moore  v.  Robins,  167. 
Moore  v.  Moore,  176. 
Moore  v.  Simmons,  203. 
Moore  v.  Pickett,  313. 
Moore  v.  Wade,  322. 
Moore  v.  Cornell,  339. 
Moore  v.  Aldermen,  473. 
Moore  v.  Burrows,  506. 
Moorecroft  v.  Dowdinff,  256. 
Moran  v.  Dillehay,  350. 
Moreland  v.  Lawrence,  447. 
Morgan  v.  Curtenius,  98. 
Morgan  v.  Palmer,  129. 
Morgan  v.  Clayton,  16^),  195. 
Morgan  v.  Bergen,  289. 
Morgan  v.  Pope,  359. 
Morgan  v.  Bause,  423. 
Morgan  v.  Hammett,  322. 
Mohr  V.  Tulip,  440,  441. 
Moi-ris  V.  McMorris,  176. 
Morris  v.  State,  315. 
Morris  v.  Robey,  122. 
Morris  v.  H albert,  514. 
Morris  v.  Turnpike  Road,  51. 
Morrison  v.  Kelly,  59. 
Morrison  v.  Caldwell,  156. 
Morrison  v.  Silverburgh,  152. 
Morrow  v.  Weed,  440. 
Moughon  V.  Masterson,  332. 
Moulton  V.  McMacarty.  418. 
Mounce  v.  Beyers,  2-2. 
Mu'ford'v.  Beveridge,  269. 
Mulfordv.  Tunis,  461. 
MuUins  V.  Aiken,  431. 
MuUins  V.  Sparks,  433. 
Mumford  v.  Whitney,  22. 
Munday  v.  Vail,  414,  416. 
Mundorf  v.  Howard,  296. 
Murphy  v.  Mayor,  etc.,  550. 
Murphy  v.  McGrath,  315. 
Mui-phy  V.  Hendricks,  327. 
Mun-y  V.  Blacklcdge,  145. 
Murry  v.  Lj'bum,  397. 
Musgrove  v.  Bonser,  63. 
Mushlitt  V.  Silverman,  392,  394. 


Musser  v.  Hcrslipy,  135. 
Myler  v.  Hughes,  413. 

Neal  V.  Speigle,  391. 
Neiswanger  v.  Gwyne,  480. 
Nelson  v.  Ferris,  339. 
Nevens  v.  Gourley,  363. 
Newman  v.  Jenkins,  507. 
Newton  v.  McKay,  154,  155. 
Nevvsom  v.  Thompson,  208. 
Nichr.ls  v.  Nichols,  103. 
Nichols  V.  Postlethwaite,  371. 
Nicol  V.  R.  R.  Co.  473. 
Nixon's  Appeal,  214. 
Norvell  v.  Walker,  170. 
Nowlin  V.  Reynolds,  519. 
Nugent  V.  Cincinnati  R.  R.  Co.  40. 
N.  W.  Iron  Co.  v.  Mead,  467. 

Oaksmith  v.  Johnson ,  527. 
O'Brien  v.  Perry,  593. 
O'Brien  v.  Creig,  463. 
Ochiltree  v.  McClurg,  157. 
Odiorne  v.  Wade,  43. 
Odell  V.  Montrass,  323. 
Ogden  V.  Jennings,  21. 
Ogden  V.  Walters,  186. 
Ogden  V.  Walkers,  334. 
Okeson's  Appeal,  370. 
Olcott  V.  Robinson,  425. 
Olds  V.  Cumming,  310. 
Oliver  V.  Craswell,  467. 
Oliver  v.  Robinson,  478. 
Olney  v.  Hall,  3G5. 
Olson  V.  Merrill,  44. 
Ommanny  v.  Butcher,  367. 
Orendortf  v.  Stanberry,  451. 
Ormsby  v.  TeiTy,  431. 
Ostrom  V.  Curtis,  447. 
Osterberg  v.  Union  Ti-ust  Co.  479. 
Osgood  V.  Abbott,  166. 
Overseers  v.  Sears,  232. 
Owen  V.  Reed,  259. 
Owen  V.  Navasta,  422. 
Owens  V.  Miss.  Soc.  367. 

Packard  v.  Ames,  166. 


xlvi 


TABLE   OF    CASKS. 


Page  V.  Rogers,  24. 
Page  V.  Palmer,  166. 
Page  V.  Greely,  294. 
Page  V.  Truch,  564. 
Palmer  v.  Ford,  210. 
Palmyra  v.  Morton,  305. 
Panoia  Co.  Sup.  v.  Gillen,  393. 
Paris  V.  Mason,  51. 
Parish  v.  Ward,  501. 
Park  Comm'rs  v.  Armstrong,  52. 
Parker  v.  Fay,  158. 
Parkinson  v.  Transdale,  39S. 
Parmley  v.  Buckley,  292. 
Parrat  v.  Neligh,  429. 
Parsel  v.  Stryker,  ;J02. 
Parsley  v.  Nicholson,  416. 
Parsons  v.  Nogle,  319,  337. 
Parsons  v.  Commissioners,  105. 
Patton  V.  Campbell,  458. 
Patten  V.  Hope,  325. 
Peabody  v.  Hewitt,  179. 
Peakv.  Wendel,  94. 
Peak  V.  Ligon,  414. 
Pearsons  v.  Tucker,  394, 
Peay  v.  Little  Rock,  477. 
Peck  V.  Arehart,  191,  192- 
Peckham  v.  Haddock,  190,  3-:.6. 
Pendleton  v.  Button,  172. 
Pennock's  Estate,  869. 
Pensonneau  v.  Bleakley,  240. 
People  V.  Marshall,  476. 
People  V.  Bradley,  477. 
People  V.  Biggins,  482. 
People  V.  Snyder.  173,  175. 
People  V.  Gates,  176. 
People  V.  Herbal,  202. 
People  V.  Livingstone,  12. 
People  V.  Conklin,  53. 
People  V.  Ferry,  135. 
People  V.  Morrill,  134. 
Peoria  v.  Darst,  191. 
Peoria  V.  Kidder,  441. 
Perkins  v.  Simmonds,  502. 
Peters  V.  Phillips,  290. 
Petersine  v.  Thomas,  413. 
Pettit  V.  Cooper,  413. 


Peugh  V.  Davis,  317,  322. 

Peyton  v.  Jeffries,  21. 

Phelps  V.  Smith,  98. 

Phillips  V.  Stevens,  300. 

Piel  V.  Brayer,  422. 

Pie  ce  V.  Milwaukee,  333. 

Pierce  Mutelle  case,  129. 

Pike  V.  Galven,  320. 

Pike  V.  Brown,  213. 

Pickett  v.  Dowling,  49. 

Pillow  V.  Helm,  391. 

Pillsubury  v.  Mitchell,  167. 

Pingree  v.  McDuife,  21. 

Pinney  v.  Fellows,  552. 

Pitts  V.  Singleton,  264. 

Plumb  v.  Tubbs,  210. 

Poe  V.  Hardie,  17. 

Pollock  V.  Buie,  419. 

Pollard  V.  Hogan    134. 

Pomeroy  v.  Stevens,  61. 

Pool  v.  Potter,  24  '. 

Porter  v.  Sullivan,  199. 

Post  v.  Kearney,  301. 

Potts  v.  Da.venport,  18,  436. 

Powell  V.  Smith,  322. 

Powe.l  V.  Knox,  405. 

Power  V.  Cassidy,  366. 

Powers  V.  Jackson,  145. 

Powder  Co.  v.  Loorais,  392. 

Pratt  V.  Pratt,  319. 

Preston  v.  Morris  Case  Co.  339. 

Preston  v.  Van  Gorder,  479. 

Prettyman  v.  Barnard,  416. 

Prettyman  v.  Wilkey,  192. 

Fribble  V.  Hall,  223. 

Price  V.  Osborn,  221. 

Prim  V.  Rabatea,u,  446. 

Pringle  v.  Dunn,  63,  163,   172,   250. 

Pritchard  v.  Brown,  64. 

Probasco  v.  Johnson,  924. 

Providence  v.  Adams,  38. 

Propst  V.  Meadows,  447. 

Putnam  v.  Bicknell,  154,  217. 

Piyor  V.  Downey,  410. 

Quinby  v.  Conlan,  456. 


TABLE   OF    CASES. 


xlvii 


Quinn  v.  Kenyon,  98. 

Eamsdell  v.  Ramsdell,  359. 

Rand  v.  Sanger,  858. 

Randall  V.  Sanger,  454. 

Randolph  v.  Carlton,  400. 

Randolph  v.  Metcalf,  409. 

Rankin  v.  Dulaney,  452. 

Rathgerber  v.  Dupy,  o92. 

Rayburn  v.  Kuhl,  489. 

Read  v.  Gather,  369. 

Read  v.  Whittemore,  39. 

Reasoner  v.  Makley,  99,  833. 

Redden  v.  Miller,  551. 

Red  field  Mfg.  Co.  v.  Dysart,  158. 

Reedv.  She.  gold,  533. 

Reed  v.  Lukens,  288. 

Reed  v.  Reed,  359. 

Reed's  Appeal,  405. 

Reindersv.  Kappelmann,  32. 

Reinhart  v.  Schuyler,  482. 
Rhienstrom  v.  Cone,  176. 
Remington  Paper   Co.  v.  0" Dough- 
erty, 175, 
Rex  V,  Matherseal,  379. 
Rice  V.  R.  R.  Co.  123. 
Rice  V.  Bunce,  40. 
Richards  v.  Green,  18. 
Richards  v.  Miller,  352,  356. 
Richards  v.  Bent,  168. 
Richardson  v.  Thompson,  45. 
Richardson  v.  Clow,  158. 
Richardson  v.  Wicker,  422. 
Riddick  V.  State  Bk.  454. 
Riggs  V.  Boj'lean,  63. 
Rigg  V.  Fuller,  526. 
Riggin  V.  Love,  164. 
Rigor  V.  Frye,  23. 
Ringhouse  v.  Koever,  503. 
Ripley  v.  Harris,  334. 
Rivers  v.  Thompson,  482. 
Robbins  v.  Bunn,  98. 
Roberts  v.  Clelland,  436. 
Roberts  v.  Roberts,  271. 
Roberts  v.  Bassett,  294,  548. 
Robertson  v.  Wells ville,  47. 


Robinson  v.  Bates,  20. 
Robinscn  v.  Payne,  164. 
Robinson  v.  Eagle.  218. 
Rockwell  V.  Brown,  158. 
Roche  V.  Ullmann,  311. 
Rodgers  v.  Bonner,  406. 
Rogers  v.  Renshaw,  18. 
Rollin  V.  Pickett,  191. 
Rosenthal  v.  Penick,  388. 
Ross  V.  Ross,  32. 
Ross  V.  Sadgbeer,  158. 
Rourke  V.  O'Conner,  552. 
Rowe  V.  Becker,  166. 
R.  R.  Co.  V.  Rogsdale,  41. 
R.  R.  Co.  V.  Schurmeir,  47,  143. 
R.  R.  Co.  V.  Burkett,  51,473. 
R.  R.  Co.  V.  Tevis,  97. 
R.  R.  Co.  V.  United  States,  107. 
R.  R.  Co.  V.  R.  R.  Co.  108,  123. 
R.  R.  Co.  V.  Brown,  122. 
R.  R.  Co.  V.  Litchfield,  123. 
R.  R.  Co.  V.  Morris,  481. 
R.  R.  Co.  V.  Joliet,  150. 
R.  R.  Co.  V.  Schuyler,  550. 
Rucker  v.  Dooley,  423,  463. 
Ruckle  V.  Barbour,  433. 
Rufiv^r  V.  McConnell,  185. 
Rugg  V.  Hoover,  394. 
Rusling  V.  Rusling,  456. 
Ruslin  V.  Shield,  174. 
Russell  V.  Ransom,  552. 
Russell  V.  Sweezy,  551. 
Russell  V.  Place,  404. 
Russell  V.  Brown,  162,  182. 
Russell  V.  Whitehead,  109. 
Russell  V.  Mandell,  64. 
Ruih  V.  King,  158. 
Rutherford  v.  Tracy,  145. 
Eyan  v.  Andrews,  28. 
Ryan  v.  Carter,  122. 
Ryan  v.  Killpatrick,  527. 
Ryder  v.  Rush,  283. 
Ry.  Co.  V.  Burket,  473. 

Salmon  V.  Yallejo,  167. 
Samuels  v.  Shelton,  251. 


xlviii 


TABLE    OF    CASES. 


Sanborn  v.  Robinson,  3^.0,  331. 
Sanders  v.  Eldridge,  1G2. 
Sands  v.  Davis,  130. 
Sands  v.  Lynbam,  53. 
Sands  v.  Hughes,  621. 
Sanxay  v.  Hunger,  553. 
Sargent  v.  Howe,  247. 
Sash  V.  Hardick,  407. 
Saunders  v.  Hart,  41. 
Saunders  v.  Hanes,  150,  191.  207. 
Saundera  v.  Schmaelzle,  162. 
Sawyer  v.  Cox.  70,  236. 
Sayler  v.  Plaine,  15. 
Scaoimon  v.  Swartwout,  428. 
Sarborough  v.  Smith,  463. 
Scarlett  v.  Gorham,  397. 
Schafer  v.  Reilly,  340. 
ScbaefiFer  v.  People,  497. 
Scharfenburg  v.  Bishop,  185,  186. 
Schettler  v.  Smith,  369. 
Schmucker  v.  Sibert,  213. 
Schnee  v.  Schnee,  132. 
School  District  v.  Taylor,  335. 
Schott  Estate,  350. 
Schroeder  v.  Gurney,  463. 
Schulenberg  v.  Harriman,  108. 
Schumpert  v.  Dillard.  208. 
Scoffin  V.  Grandstaff,  39. 
Scott  V.  Rand,  247. 
Scott  V.  Mann.  272. 
Scott  V.  Simpson,  294,  548. 
Scott  V.  Moore,  446. 
Scovill  V.  Griffith,  445. 
Seigneuret  v.  Pahey,  23. 
Sellers  v.  Corwin,  406,  407. 
Semple  v.  Bank,  24. 
Sewal  V.  Roberts,  502. 
Seyler  v.  Carson,   192. 
Seymour  V.  Sanders,  10. 
Shackelford  v.  Todhunter,  18. 
Shackleton  v.  Siebree,  204. 
Shannon  v.  Hall,  334. 
Shattuck  V.  Hastings,  166. 
Sharp  V.  Spear,  51. 
Shays  v.  Norton,  322. 
Shear  v.  Stothart,  47. 


Sheldon  v.  Rico,  271. 
Shepard  v.  Howard,  223. 
Shepard  v.  Shepard,  335. 
Shepardson  v.  Rowland,  225. 
Sheppard  v.  Thomas,  165. 
Sheridan  v.  Andrews,  462. 
Sherlock  v.  Winnetka,  477. 
Sherman  v.  Abbott,  468. 
Sherman  v.  Hogland,  219. 
Sherman  v.  Kane,  548. 
Sherrid  v.  Southwick,  332. 
Sherwood  v.  Wilson,  344. 
Sherwood  v.  Sherwood,  351. 
Shields  v.  Miller,  252. 
Shivers  v.  Simmons,  222. 
Short  V.  Conlee,  172. 
Shrlver's  Lessee  v.  Lynn,  432. 
Shuffleton  v.  Nelson,  524. 
Shumaker  v.  Johnson,  39. 
Shumway  v.  Holbrook,  379. 
Skinner  v.  Fulton,  511. 
Sibley  V.  Waffle,  441. 
Sibley  v.  Smith,  489. 
Sillers  v.  Lester,  333. 
Sillyman  v.  King,  94. 
Simmons  v.  Fuller,  327,  334. 
Simmons  v.  Wagner,  95. 
Simmons  v.  Thomas,  219. 
Sinnettv.  Cralle,  421. 
Simpson  v.  Pearson,  38,  40. 
Simpson  v.  Neil,  134. 
Sims  v.  Rickets,  217,  220. 
Skinner  v.  Wood,  265. 
Slater  v.  Breese,  188,  327. 
Sloan  V.  Lawrence  Furnace  Co.  165. 
Slocum  V.  Slocum,  449. 
Small  V.  Stogg,  391. 
Smiles  v.  Hastings,  310. 
Smith  v.  Chenault,  18. 
Smith  v.  Colvin,  24,  4:3. 
Smith  v.  Frankfield,  38. 
Smith  V.  Block,  160. 
Smith  V.  Crawibrd,  162,  183,  464. 
'  Smith  V.  Garden,  172,  187. 
Smith  V.  McConneli,  266. 
Smith  V.  Van  Gilder,  188. 


TADLE    OF    CASES. 


xlix 


Smith  V.  Rheely,  231,  232. 

Smith  V.  Keohiirne,  340. 

Smith  V.  Bell,  359. 

Smith  V.  Rowland,  391. 

Smith  V.  Bradstreet,  400. 

Smith  V.  Richardson,  457. 

Smith  V.  Bangs,  459. 

Smith  V.  Shfrwood,  461. 

Smith  V.  Wood,  467. 

Smith  V.  Messer,  478. 

Smith  V.  Lewis,  485. 

Smith  V.  McConnell,  496. 

Smith  V.  Smith,  5'^6. 

Smith  V.  Robertson,  548. 

Smithdeal  v.  Campbell,  347. 

Smyth  V.  Taylor,  856. 

Snyder  v.  Palmer,  89. 

Sohier  v.  Coffin,  211. 

Solomon's  Lodge  V.  Montmallin,  236. 

Soule  V.  Barlow,  519,  528. 

Southern  Cal.  Coll.  Assc.  v.  Busta- 

mcte.  235. 
Southern  Bank  v.  Humphreys,  415, 

455. 
Sower  V.  Philadelphia,  307. 
Spackman  v.  Ott,  318. 
Sparshaw  v.  Buell,  419. 
Speakman  v.  Forepaugb,  548. 
Spence  v.  Armour,  431. 
Spencvrv.  Dearth,  404. 
Spen-y  v.  Pound,  210. 
Springer  v.  Brattle,  196. 
Spurlock  V.  Allen,  490. 
Staak  V.  Sigelow,  154. 
Stradlcr  v.  Allen,  405. 
Stanclifts  v.  Norton,  330. 
Stark  V.  Mather,  91,94. 
Stark  V.  Starr,  91.  94,  520,  524. 
Starkweather  v.  Martin,  170. 
State  V.  Pepper,  88. 
State  V.  Bradish,  40,  81. 
State  V.  Laverack,  51. 
State  V.  Jennings,  240. 
State  V.  Jersey  City.  307. 
State  V.  Fasdick,  22.^. 
State  V.  Leflingwell,  230. 


State  V.  Orwig,  462. 
State  V.  Ames,  514. 
St.  Clair  Co.  v.  Livingstone,  44. 
Steel  V.  Kurtz,  31. 
Steele  v.  Boone,  64. 
Steeple  v.  Downing,  480. 
Stein  V.  Sullivan,  339. 
Stephens  v.  Reynolds,  302. 
Stephens  v.  Williams,  172. 
Stephens  v.  Evans,  369. 
Stephenson  v.  Wilson,  103. 
Sterns  v.  Swift,  223. 
Stevens  v.  Brooks,  520.  521. 
Stevens  v.  Rainwater,  391. 
Stevens  v.  R.  R.  Co.  884. 
Stevens  v.  Harrow,  212. 
Stevens  v.  Hampton,  172. 
Stewart  v.  Pettigrew,  422. 
Stewart  v.  Garvin,  433. 
Stewart  v.  Barrow,  317,  340. 
Stewartson  v.  Stewartson,  472. 
Still  well  V.  Swarthaut,  421. 
Stoddard  v.  Burton,  38. 
Stoddard  v.  Chambers,  126. 
Staffel  V.  Schroeder,  196. 
Stow  V.  Yarwood,  284. 
Streeter  v.  Streeter,  301. 
Strickland  v.  Kirk,  288. 
Stringer  v.  Young,  127,  130,  132. 
Strong  v.  Schmer,  126. 
Strong  V.  Converse,  212. 
Strather  v.  Lucas,  87,  121,  122. 
Strather  v.  Law,  338. 
Stuart  V.  Harrison,  391. 
Stuart  V.  AValkcr,  360. 
Stubbs  V.  Sargon,  307. 
Stuller  V.  Link.  172. 
Stuphen  v.  Ellis,  3S0. 
Styks  V.  Probst,  221. 
Succession  of  Bogere,  504. 
Sullivan  v.  Sullivan,  463. 
Sumner  v.  Williams,  167,  250. 
Surgi  v.  Colraer,  421. 
Sutton  V.  Schonwald,  430. 
Swan  V.  Benson,  391. 
Swau  V.  Yaple,  341. 


1 


TABLE    OF    CASES. 


Sweat  V.  Corcoran,  127. 
Sweet  V.  Mitchell,  818. 
Swegle  V.  Wells,  457. 
Swink  V.  Thompson,  436. 
Sykes  v.  Sykes,  223,  224. 

Taft  V.  Kessell,  293. 
Taggart  v.  Risley,  39,  159. 
Talbott  V.  R.  R.  Co.  214. 
Talbot  V.  Hudson,  51. 
Talbot  V.  Todd,  413. 
Tankard  v.  Tankard,  61. 
Taylor  v.  Preston,  167. 
Taylor  V.  Boyd,  414. 
Taylor  v.  Reed,  412. 
Taylor  V.  Dood,  371. 
Taylor  v.  King,  343. 
Taylor  V.  Sutton,  210. 
Taylor  v.  Brown,  94. 
Teft  V.  Munson,  320,  321. 
Terrell  v.  Andrew  Co.  68. 
Terrett  v.  Taylor,  121. 
Terry  v.  Wiggins,  358. 
Terwilliger  v.  Brown,  256. 
Teschemacher  V.  Thomson,  131. 
Thatcher  y.  St.  Andrews  Ch.,  155, 
Thatcher  v.  Candee,  247. 
Thatcher  v.  Rowland,  223. 
Thayer  v.  Torry,  183,  293. 
Thaxter  v.  Williams.  393. 
Thielman  v.  Carr,  392,  558; 
Thomas  v.  Clark,  275. 
Thomas  v.  AVyatt,  1.33. 
Thomas  v.  Barton,  292,  458. 
Thomas  v.  Babb,  523. 
Thomas  v.  Industrial  University,  393. 
Thomas  v.  Desney,  417,  418. 
Thompson  v.  Gregory,  22. 
Thompson  V.  Prince,  111,  122. 
Thompson  v.  Thompson,  155. 
Thompson  v.  Lovrein,  179. 
Thompson  v.  Ludington,  365. 
Thompson  v.  Lee,  418. 
Thompson  v.  Craighead,  429. 
Thompson  v.  Ware,  489. 
Thompson  v.  Pioche,  519,  523. 


Thompson  v.  Curtis,    .".11. 

Thompson   v.    Higginbotham,    315. 

Thorn  v.  Ingram,  268. 

Thornton  v.  Grant,  45. 

Thornton  v.  Irwin,  .342. 

Thorp  V.  Keokuk  Coal  Co.  168,  196. 

Thrasher  V.  Bently,  277. 

Thuleman  v.  Jones,  408. 

Tibbs  V.  Allen,  4'^S. 

Tibbitts  V.  Tilton,  439. 

Tidd  V.  Rines,  93. 

Tilton  V.  Hunter,  60. 

Tilton  V.  R.  R.  Co.  551. 

Timanus  v.  Dugan,  353,  854. 

Tobey  v.  Taunton,  39. 

Todd  V.  R.  R.  C,  47. 

Tollenson  v.  Gunderson,  183. 

Tolman  v.  Emmerson,  490. 

Tompkins  v.  Fonda,  20. 

Tompkins  v.  Seely,  292. 

Tone  V.  Wilson.  167. 

Torrey  v.  Deavitt,  339,  344. 

Torrey  v.  Cook,  263. 

Tower  V.  Divine,  322. 

Townsend  v.  Tallant,  433. 

Townsend  v.  Rad cliff,  502. 

Tracy  v.  Kilborn,  362. 

Treadwell  v.  Reynolds,  174. 

Tritt  V,  Roberts,'  521. 

Troy  V.  R.  R.  Co.  52. 

Truehart  v.  Price,  459, 

Trust  Co.  V.  People,  53. 

Trustees  v.  Beale,  332. 

Tucker  v.  Whitehead,  380. 

Turner  v.  Smith,  479. 

Turner  v.  Yeoman,  489. 

Turner  v.  Kerr,  322. 

Turner  v.  Ivie,  208. 

Turner  v.  Jenkins,  416. 

Turpin  v.  Road  Co.  314. 

Tustin  v.  Faught,  169. 

Twichell  v.  Mears,  213. 

Tyler  v.  Reynolds,  26,  81,  498. 

UfFord  V.  Wilkins,  184. 
Union  Mill  Co.  v.  Feniss,  132. 


TABLE    OF    CASES. 


li 


United  States  v.  Brooks,  107. 
LTnited  States  v.  Fitzgerald,  93,  95. 
United  States  v.  Hoar,  527. 
United  States  v.  King,  90. 
United  States  v.  Berchman,  107. 
United  States  v.  Stone,  126. 
United  States  v.  Schurz.  25,  128. 

Van  Aken  v.  Gleason,  334. 
Van  Courtlandt  v.  Kip,  373. 
Van  Hanswyck  v.  Wiese,  374. 
Van  Keuven  v.  R.  R.  Co.  61,  525. 
Van  Keuven  v.  McLaughlin.  277. 
^^an  Meter  v.  McFadd  -n,  293. 
Van  Ransellffir  v.  Smith,  12. 
Van  Rensselaer  v.  R.  R.  Co.  21. 
Van  Rensselier  v.  Hays,  298. 
Van  Ran.sseloer  v.  Gullup,  302. 
Van  Ransselter  v.  Penmmar,  301. 
Van  Riswick  v.  Goodhue,  330. 
Van  Schaac  v.  Robbius,  192. 
Van  Wickle  v.  Calvin.  264. 
Van  Wickle  v.  Landry,  332. 
Vail  V.  Vail,  366. 
Vail  v.  Iglehart,  437. 
Valent'ui  v.  Rawson,  394. 
Valle  V.  Flemintr,  432. 
Vallejo  Land  Ass'n  v.  Viera,  328. 
Vandall  v.  Dock  Co.  229. 
Vannat  a  v.  Brewer,  29^3. 
Vanscycle  v.    Richardson,   27,   388, 

498. 
Vanzant  v.  Vanzant,  39^,  471. 
Vason  V.  Ball,  317,  387. 
Vass  V.  Johnson,  422. 
Vas'iault  V.  Edwards,  291,  295. 
Vaughan  v.  Ely,  388,  424,  434. 
Vaughan  v.  Greer,  218. 
Verdi n  v.  Slocum,  15. 
Verges  v.  Giboney,  344. 
Vernon  v.  Morton,  275. 
Vernon  v.  Vernon,  351,  357. 
Viel  V.  Judson,  339. 
Vipond  v.  Hurlbut,  168.  197. 
Voorhees  v.  Frisbic.  279. 

Wade  v.  Lindsey,  211. 


Wade  v.  Devay,  188. 
Wainwright  v.  Tuckerman,  373. 
Wnit  V.  Smith.   63. 
Wakefiekl  v.  Bon  ton,  456. 
Wakefield  v.  Chowen,  8,  80. 
Walbridge  v.  Day,  27,  498. 
Wales  V.  Bogue,  409. 
Walke  V.  Moody,  422. 
Waiker  v.  Matthews,  386. 
Walker  v.  Dement,  340. 
Walker  v.  Craig,  264,  265. 
Walker  v.  Miller,  234. 
Walker  V.  Summers.  320. 
Walker  v.  Cockey,  329. 
AValker  v.  Dennison,  241,  242. 
Wall  V.  Wall,  374. 
Wallace  v.  Harmstad,    12,    13,    132, 

497. 
Wallace  v.  Wilson,  94,  333. 
Walhice  v.  Harris,  158. 
AValler  v.  Arnold,  260,  333. 
Wallington  v.  Taylor,  371. 
Walsh  V.  Hill,  522. 
Walter's  Appeal,  369,  371. 
Widton  V.  Hargroves,  391. 
Walton  V.  Cody,  317.  323. 
Wangelin  v.  Goe,  459. 
Ward  V.  Mulford,  134,  135. 
Ward  V.  Amory,  360. 
Ward  V.  Gates,  380. 
Warehouse  Co.  v.  Terrill,  433. 
Warfield  v.  Brand,  264. 
Warner  v.  Everetl,  400. 
Warner  V.  Bull,  211. 
Warner  v.  Bennett,  210. 
Warner  v.  Sharp,  249. 
Warren  v.  Richmond,  551. 
Wan-en  v.  Ly  ch,  170. 
Warren  v.  Blake,  21. 
Warn  n  v.  Levitt,  123. 
Washb.irn  v.  Cutler,  494,  522. 
Waterman  v.  Smith,  1:!L 
Waters  v.  Bush,  94.  102,  117. 
Wa'ers  v.  Jones,  342. 
Watson  v.  Water  Co.,  229. 
Watson  V.  Riskmire,  220. 


Hi 


TABLE    OF    OASES. 


Watson  V.  R.  R.  Co.  473. 
Watson  V.  Hoy,  430. 
Watson  V.  Blackwood,  3j0. 
Watson  V.  Sherman,  241. 
Watt  V.  McGaliiard,  426. 
Weaver  v.  Poj-er,  458. 
Webb  V.  Matt,  453. 
Webber  v.  Townley,  -58. 
Weber  v.  Anderson,  523. 
Weckler  v.  Bank,  229. 
Wedge  V.  Moore,  213. 
Weeks  v.  Milwaukee,  477. 
Weeks  v.  Dowing:,  64,  87. 
Weidei  sum  v.  Nauraann,  448. 
Welch  V.  R.  R.  Co.  33. 
Welch  V.  Button,  42,  295. 
Welch  V.  Priest,  340. 
Wells  V.  Hannavan,  522. 
Wells  V.  Atkinson,  172,  187. 
Welsh  V.  Huse,  350. 
Welsh  V.  Phillips,  ;519. 
Welsch  V.  Savings  Bk.  351,  360. 
Westlake  v.  Westlake,  221. 
Wetmore  v.  Parker,  367. 
Wetmore  v.  Laird,  172. 
Wider  v.  East  St.  Louis,  476. 
Weisner  v.  Zaun,  S9. 
AViggins  Ferry  Co.  v.  R.  R.  Co.  206. 
Wilcox  V.  Jackson,  25,  91,  132. 
Wiley  V.  Sirdorus,  165. 
Wiley  V.  Williamson,  340. 
Wilkes  V.  Back,  240. 
Willamette  Co.  v.  Gordon ,  379. 
WiUiird  V.  Cramer,  172,  187. 
V/illiams  v.  Baker,  173. 
Wil'.ans  V.  Wisnor,  278. 
Williams  v.  Merritt,  280. 
Williams  v.  Teachey,  341. 
AVill'ams  v.  Jackson,  343. 
Williams  v.  Williams,  367. 
Williams  v.  Amory,  423,  497. 
Williams  v.  Valkenbursr,  454. 
Williatus  V.  Downes,  453. 
Williams  v.  Townsend,  485. 
Williams  v.  Kirkland,  489. 
Williams  v.  Ewing,  604. 


Williams  v.  Wallace,  518. 

Williams  v.  Rhodes,  271. 

Williamson  v.  Berry.  432. 

Willot  V.  Sanford,  122. 

Wills  V.  Chandler,  432. 

Wilson  V.  Reutor,  331. 

Wilson  V.  Wilson,  27,  210. 

Wilson  V.  Spring,  247. 

Wil-on  V.  McKenna,  176. 

Wilson  V.  Lyon,  391. 

AVilson  V.  Eggleston,  458. 

Wilson  V.  Hunter.  .3,  59. 

Wilson  V.  King,  39. 

Wilson  V.  Sexton,  48. 

Winans  v.  Cheney.  162. 

Wing  V.  Dodge,  422,  440. 

Wing  V.  Hall,  494. 

Wing  V.  Cooper,  318. 

Wingate  v.  Pool,  265. 

Winkler  v.  Miller,  196. 

Winslow  V.  Winslow,  154,  ISO. 

Winter  v.  Stock,  154,  228. 

Winter  v.  Crommelm,  127,  132. 

Winthrop  v.  Fairbanks,  164. 

Witter  V.  Dudley,  3. 

Wheat  on  v.  Sexton,  424. 

Wheeler  v.  Smith,  36d. 

Wheeler  v.  Hartshora,  350. 

Wheeler  v.  Spinola,  47. 

Wheeler  v.  Wheeler,  472. 

Wheeler  v.  Clutterbuck,  495,  502. 

Wheeler  v.  Schad,  168. 

Whelan  v.  Sullivan,  290. 

Whetstone    v.    Ottawa     University 

230. 
Whitaker  v.  Miller,   152,  155,  161, 

173.  ISO. 
White  V.  Whitney.  166,  252. 
White  V.  Clover,  264. 
White  V.  Clawson,  270. 
White  V.  Rit  enmeyer,  319,  CS7. 
White  V.  Patton,  320. 
White  V.  Foster,  162,  213. 
White  V.  Luning.  248. 
White  V.  Moses.  249. 
Wihte  V.Davis,  252. 


TABLE    OF    CASES. 


liii 


White  V.  Fuller,  552. 
Whitehall  V.  Gottwal.   19V 
Whiting  V.  NichoU,  507. 
Whiting-  V.  Butler,  252. 
Whitmore  v.  Larned,  478. 
Whitman  v.  FiSher,  265. 
Whitman  v.  Hennebeny,   174,  175. 
Whitney  v.  French,  341. 
Whitney  v.  Roberts,  446. 
Whitridjje  V.  Taylor,  279. 
Wliitsell  V.  Mills,  223. 
Wood  V.  Goodridge,  240. 
Wood  V.  Sampson,  347,  371. 
Wood  V.  Bank,  314. 
Wcod  V.  Beach,  158. 
AVood  V.  Morehouse,  422. 
AVood  V.  My  rick,  439. 
Wood  V.  Young,  407. 
Wood  V.  Hurd,  47. 
Woods  V.  Monroe,  440,  443. 
Woods  V.  Hildebrand,  387. 
Wo.jdbury  v.  Doi-man,  333. 
Woodman  v.  Clapp,  489. 
Woodward  v.  Reynolds,  97. 
Woodward  v.  Harris,  467. 
Woodworth  v.  Payne,  210. 


Wooliscroft  V.  Xorton,  1G8. 
Work  V.  Welland,  320. 
Worth  V.  Branson,  91,  95,  117. 
Worrallv.  MLinn,240. 
Wright  V.  Spen-y,  168. 
Wright  V.  Tinsley,   296. 
Wright  V.  Dufield.  223. 
Wright  V.  Howell,  212. 
Wright  V.  Marsh,  464. 
Wright  V.  Walker,  485. 
Wrght  V.  Young,  387. 
AVrlght  V.  Day,  144. 
Wright  V.  Dunn,  351. 
Wyman  v.  Farfer,  165. 

Yackle  v.  Wightman,  415. 
Yahoola  Mining  Co.  v.  Irby,  238. 
Yale  V.  Flanders,  170. 
Yard  v.  Murry,  372. 
Yosemite  Valley  Case,  97. 
Young  V.  Gailbeau,  173. 
Young  V.  Clippinger,  197. 
Young  V.  Young,  218. 
Yount  V.  Howell,  Tl. 
Youse  V.  Forman,  373. 

Zeigler  v.  Hughes.  330. 


WARVELLE 


ON 


ABSTRACTS  OF  TITLE. 


CHAPTER  I. 


PRELIMINARY  OBSERVATIONS. 


1. 

Tntroducfory  remarks. 

§7. 

Abstracts    and    examinations 

2. 

Definition. 

distinguished. 

3. 

Origin  of  abstracts. 

8. 

Qualifications  of  the  examiner. 

4. 

Essentials  of  the  abstract 

9. 

Liability  for  eiTor. 

5. 

The  English  method. 

10. 

Miscellaneous. 

6. 

The  American  method. 

§1.  Introductory.  Witliin  comparatively  recent  years  the 
business  of  furnishing  abstracts  of  title  has  grown  to  enormous 
proportions  in  tlie  United  States,  calling  for  a  class  of  highly 
skilled  conveyancers,  with  special  training  and  qualifications 
for  the  work,  while  the  examination  of  titles  lias  almost  created 
a  new  department  of  the  law.  To  assist,  in  an  humble  way, 
this  large  and  constantly  increasing  class  of  practitioners,  by 
a  statement  of  the  most  approved  methods  of  compiling  and 
arranging  the  abstract,  the  sources  of  information,  and  the 
aids  derived  from  indices  and  references,  together  with  a  brief 
review  of  the  general  principles  of  law  applicable  to  tlie  ex- 
amination of  titles,  will  be  the  object  of  this  work.  In  the 
latter  respect  it  is  necessarily  brief  and  consequently  element- 
ary and  is  intended  rather  as  a  series  of  hints  and   sugges- 

(1) 


2  ABSTKACTS    OF    TITLE. 

tlons  that  may  incite  tlie  examiner  to  more  extended  inquiry, 
than  as  a  full  elucidation  of"  the  law  on  the  subjects  enumerated. 

§  2.  Definition.  An  abstract  may  be  defined  as  a  con- 
densed liistory  of"  the  title  to  land,  consisting  of  a  syno])sis  or 
summary  of  the  material  or  operative  portion  of  all  the  con- 
veyances, of  whatever  kind  or  nature,  which  in  any  manner 
affect  said  land,  or  any  estate  or  interest  therein,  to(?ether  with 
a  statement  of  all  liens,  charj^es  or  liabilities  to  which  the 
same  may  be  subject,  and  of  which  it  is  in  any  way  material 
for  purchasers  to  be  apprised.  It  is  arranged,  usually,  in 
chronological  order  and  is  intended  to  show  tiie  origin,  course 
and  incidents  of  the  title  without  the  necessity  of  referring  to 
the  orio'inal  sources  of  information.' 

§  3.  Origin  of  Abstracts.  Though  the  USB  of  abstracts  has 
now  become  universal,  where  free  alienation  of  land  is  per- 
mitted and  property  rights  are  recognized,  but  little  can  be 
said  as  to  the  origin  of  the  custom.  The  first  English  works 
on  the  subject,  published  during  the  first  half  of  the  present 
century,  treat  of  the  abstract  as  an  established  fact,  but  make 
no  mention  of  the  period  at  which  it  first  began  to  be  used. 
During  the  earlier  years  of  the  Union  but  little  attention  was 
paid  to  title  in  purchases  of  real  estate.  Ordinarily  the  buyer 
was  fully  satisfied  with  a  "  warrantee"  deed,  the  covenants 
being  taken  as  conclusive  evidence  of  all  they  recited.  No 
inquiry  was  made  into  the  past,  possession  being  usually  a 
sufficient  guarantee  of  ownei'ship,  and  no  thought  was  taken 
as  to  the  future.  Transfers  of  land  were  frequently  accom- 
panied by  the  vendors  deeds  and  other  muniments  upon 
•which  the  title  was  based,  and  such  may  still  be  the  custom 
in  some  parts  of  the  country.  But  with  the  flood  of  years, 
the  increasing  commercial  activity  of  the  age,  the  removal  of 
property  disqualifications,  and  impediments  to  alienation,  has 
come  a  vast  accumulation  of  evidences  of  title,  frequently  in- 
volving complex  interests  and  curious  intricacies,  that  call  for 
a  high  degree  of  skill  to  arrange  and  classify,  as  well  as  to  in- 
terpret and    adjust.     Land,  too,  has  acquired  in  many  local- 

» 1  Bur.  Law  Diet.  15;  1  Bou.  Law  Diet.  47. 


TRELIMINART   OBSERVATIONS.  6 

ities  an  almost  fabnlons  value  and  purchasers  now  part  warily 
with  their  uionej^  and  only  on  stron_^  assurance  of  title.  It  is 
no  longer  practical,  save  in  rare  instances,  to  examine  title  by 
specific  inspection  of  the  original  documents,  were  such  always 
availal)le,  or  to  laboriously  follow  on  the  records  the  various 
mutations  through  which  it  lias  passed.  Yet,  as  purchasers 
take  at  their  peril,'  save  as  they  may  find  protection  in  the 
covenants,  it  is  necessary  that  they  should  be  apprised  of 
whatever  may  affect  the  validity  of  the  title  or  estate  they 
take,  of  which  the  law  charges  them  with  actual  or  construct- 
ive notice.  To  satisfy  this  demand  has  been  developed  the 
modern  abstract  of  title,  togeth'er  with  its  incident,  the  ex- 
aminer. 

§  4.  Essentials  of  the  Abstract.  Without  going  into  de- 
tail at  this  time  it  may  be  stated  generally,  that  the  abstract 
should  convey  all  the  material  information  contained  in  the 
originals,  and  that,  as  fully  and  completely  as  if  they  had  been 
specifically  inspected.  It  should  show  (when  from  the  source 
of  title)  the  inceptive  measures;  the  foundation  of  title;  the 
course  of  same  to  date  of  examination,  including  every  trans- 
fer of  any  and  every  interest;  the  incidents  of  the  land  itself, 
divisions  and  subdivisions;  any  and  all  adverse  titles  or 
claims;  all  liens  or  charges,  however  created,  including  judg- 
ments against  the  person  during  the  period  the  law  makes 
them  a  lien  on  land,  taxes,  special  assessments,  and  statutory 
liens;  and  every  other  matter  or  thing  appearing  of  record 
that  may  affect  or  impair  the  title.  To  these  may  be  added 
any  matter  in  pais,  that  to  the  examiner  may  seem  pertinent 
or  material. 

§  5.  The  English  Method.  According  to  Preston,^  it  is 
the  custom  in  England  when  lands  or  otlier  property,  which 
does  not  pass  by  mere  delivery  but  is  held  by  a  title  depend- 
ing on  documental  evidence,  is  sold,  for  the  solicitor  for  the 
vendor  to  prepare  an  abstract  of  title,  and  the  solicitor  for  the 
purchaser  to  compare  the  abstract  so  furnished,  with  the  deeds, 
wills,  etc.,  to  see  that  it  contains  a  correct  and  faithful  state- 

1  Witter   V.    Dudley,  42  Ala.  CIG;       son  r.  Hunter,  00  Tnd.  4G6. 
Acer  V.  Wescott,  46  N.  Y.  384;  Wil-  ^  j  Prestou  on  Abstracts,  1. 


4  ABSTRACTS   OF   TITLE. 

merit  of  all  circnmstances  disclosed  by  tlicm  relevant  to  the 
title,  or  depending  on  extraneous  facts;  as  marriages,  burials, 
baptisms,  descents,  etc.,  which  may  be  material  to  the  title. 
The  abstract  is  prepared  from  the  original  documents,  the 
vendor  retainino:  such  of  his  title  deeds  as  relate  to  or  cover 
other  property  than  that  sold  (as  also  the  custody  of  all  other 
documents  until  consummation  of  sale),  and  is  delivered  to 
the  purchaser  who  founds  on  it  such  "requisitions"  (by  way 
of  further  inquiry  or  objection)  on  the  vendor's  title  as  he 
thinks  proper;  the  purchaser  must  then  send  in  his  objections 
and  queries  in  respect  to  title  and  other  matters  appearing  on 
the  abstract,  within  a  limited  time  from  the  date  of  delivery, 
and  in  default  of  such  requisitions  or  objections  he  will  be 
deemed  to  have  accepted  the  title.  The  objections  and  que- 
ries, when  made,  are  answered  by  statements  and  observa- 
tions, signed  by  the  solicitor  or  party  making  them,  and  form 
a  part  of  the  abstract.'  The  method  of  abstracting  the  instru- 
ments and  arranging  the  chain,  differs  in  no  material  respect 
from  that  now  commonly  in  use  in  tlie  LTnited  States. 

§  6.  The  American  Method.  Aside  from  the  arrangement 
of  indexes  and  references,  there  is  no  system  of  title  abstracts 
that  can  be  said  to  be  distinctively  American,  the  methods 
varying  somewhat  in  the  different  sections,  though  presei-ving 
a  general  similitude.  The  spirit  and  oj^eration  of  our  laws,  and 
the  many  legal  usages  peculiar  to  the  country,  preclude  the 
adoption  of  the  English  methods  to  any  appreciable  extent, 
althouofh  the  abstract  makers  ot"  the  Eastern  States  still  follow 
as  closely  as  possible  in  the  footsteps  of  their  English  prede- 
cessors, and  their  work  is  built  upon  the  regulation  English 
model.  In  the  Middle  and  "Western  States,  the  operation  of 
the  United  States  land  laws,  the  later  methods  of  survey  and 
subdivision,  and  the  almost  total  annihilation  of  the  old  com- 
mon law  rules  relative  to  the  acquisition  and  transfer  of  real 
estate,  have  caused  a  wide  departure  from  the  conventional 
system  expounded  by  Preston,  Moore  and  other  English  writ- 
ers, as  well  as  that  now  (or  formerly)  used  in  the  Colonial 

'  Deane's  Conveyancing,  325;  Lee  on  Abstracts,  20. 


PEELIMINAKY    OBSERVATIONS.  5 

States.  The  American  abstract  is  not  prepared  from  the  orig- 
inal documents,  but  from  recorded  evidences  found  in  the  of- 
fices of  registration,  courts,  and  other  legal  depositories,  and, 
as  a  rule,  shows  only  such  title  as  is  deducible  of  record.  It 
is  not  identical  witli  the  English  "abstract,"  as  will  be  seen, 
and  by  way  of  distinction  is  usually  termed  an  "  examination." 
The  terms,  however,  are  used  interchangeably  by  the  profession 
and  are  practically  synonymous.  In  compiling  the  abstract, 
the  examiner  simply  collects,  condenses  and  arranges  the  in- 
formation found  of  record,  without  any  expression  as  to  the 
rights  of  any  of  the  parties  named  therein,  the  work  being 
then  turned  over  to  counsel,  who  criticall^'^  examines  each  in- 
strument shown,  or  statement  made;  decides  upon  the  suffi- 
ciency and  legal  etfect  of  the  conveyances,  noting  any  defects 
or  irregularities  therein,  or  in  any  of  the  proceedings  necessary 
to  divest  or  acquire  title;  determines  the  relative  rights  and 
legal  relations  of  the  parties,  to  the  land  in  question  and  to 
each  other;  and  finally  formulates  his  views  in  a  written  opin- 
ion which  is  annexed  to  the  abstract,  and  on  the  strength  of 
which  future  sales  or  other  disposition  of  the  property  are  usu- 
ally made. 

§  7.  Abstracts  and  Examinations  Distinguished.  As  be- 
fore stated  the  terms  abstract  and  examinatioii  in  their  ordi- 
nary acceptation  are  synonymous,  but  for  the  purpose  of  de- 
fining the  broad  scope  of  their  inquiry,  as  compared  with  the 
narrowness  and  singleness  of  the  English  method,  American 
abstract  makers  usually  prefer  the  latter  term  to  designate 
their  w^ork.  The  English  abstract  is  personal  in  its  object. 
It  seeks  only  to  show  the  title  of  some  particular  individual, 
rather  than  the  general  condition  of  the  property,  and  is  ex- 
pressed in  the  caption  to  be,  "An  abstract  of  the  title  of  John 
Doe,  Esq.,  to  that  certain  messuage,"  etc.  The  nature  of  the 
English  land  tenures  and  the  peculiar  condition  of  real  prop- 
erty in  that  country  preclude  a  general  showing  of  the  origin 
or  course  of  title  for  any  considerable  period,  nor  would  that 
perhaps  be  necessary.  It  commences  usually  with  some  spe- 
cific document,  as  a  deed  or  will,  or  frequently  with  a  descent, 
and  from  this  point,  called  the  "  root  of  title,"  and  covering  a 


6  ABSTRACTS    OF    TITLE. 

period  of  at  least  sixty  years,  sliows  the  successive  links  tliat 
connect  the  vendor's  present  title  with  the  "  root.'"  Obvionsly 
sncli  an  abstract,  however  well  it  iniglit  serve  tlie  purpose  in 
England,  would  be  most  inadequate  in  the  United  States, 
where  several  persons  frequently  claim  title  through  different 
channels  from  the  same  source,  not  to  mention  the  many  ad- 
verse titles  springing  from  independent  sources.  "A  perfect 
abstract  of  title,"  says  Preston,  "  means  a  perfect  title  in  the 
vendor,"  and  "a  condition  that  vendor  shall  deliver  an  ab- 
stract of  title,  means,"  says  Sugden,  "the  delivery  of  an  ab- 
stract showing  a  good  title. "^  The  American  abstract,  though 
confined,  as  a  rule,  to  matters  of  record,  presents  a  far  wider 
range.  While  intended  primarily  to  show  the  present  state 
of  the  vendor's  title,  it  does  not  in  terms  purport  such,  but  is 
a  general  inquiry  into  every  matter  or  thing  in  any  way  affect- 
ing the  title  to  the  land,  in  whomsoever  it  may  rest  and  how- 
ever arising  or  acquired.  A  "perfect  abstract"  shows  the 
true  state  of  the  title,  even  though  it  defeats  that  of  the  vendor, 
and  one  that  is  defective  in  any  of  the  particulars  heretofore 
noted  is  not  "pei-feet"  even  though  it  may  show  a  "perfect 
title  in  the  vendor."  The  caption  of  the  American  abstract 
expresses  its  true  purpose:  an  "examination  of  title  to  the 
!N.  E.  J,"  etc.  It  has  none  of  the  personal  features  that  char- 
acterize the  English  abstract,  and  is  decidedly  an  examination 
in  rem. 

§  8.  Qualifications  of  the  Examiner.  In  a  recent  Minne- 
sota case,  Flandrau,  J.,  reviewing  the  labor  and  skill  necessa- 
rily displayed  in  the  compilation  of  an  abstract,  says:  "  That 
the  making  of  a  perfect  abstract  of  title  to  a  piece  of  land, 
with  all  the  incun)brances  which  affect  it,  involves  a  groat  ex- 
ercise of  legal  learning  and  careful  research,  no  one  will  dis- 
pute. The  person  preparing  such  an  abstract  must  under- 
stand fully  all  the. laws  on  the  subject  of  conveyancing,  de- 
scent and  inheritances,  uses  and  trusts,  devises,  and  in  fact 
every  branch  of  the  law  that  can  affect  real  estate,  in  its  vari- 
ous mutations  from  owner  to  owner,  sometimes  by  oj)eratiou 

1  Deane's    Conveyancing,    325;    1  2  2  Sugd.  V.  &  P.  27. 

Preston  on  Abstracts,  5. 


PRELIMINARY    OBSERVATIONS.  7 

of  law,  and  again  by  act  of  the  parties."!  Perhaps  this  is 
drawing  it  a  trifle  too  strong,  and  asking  a  little  too  much 
from  an  already  overtaxed  profession.  Should  the  examiner 
possess  the  varied  accomplishments  tmumerated  bj'' the  learned 
judge,  he  will  find  it  much  to  his  advantage  in  the  prosecu- 
tion of  his  work,  yet  it  by  no  means  follows  that  he  may  not 
become  proficient,  while  lacking  many  of  the  essentials  above 
prescribed.  The  abstract  maker  is,  in  tiie  full  sense  of  the 
word,  a  conveyancer,  equally  with  him  who  draughts  and  pre- 
pares the  original  instruments.  The  difference  is  in  degree, 
not  in  kind.  The  same  laws  which  control  and  direct  the 
conveyancer  in  the  preparation  of  the  originals,  operate  with 
equal  effect  in  the  compilation  of  the  abstract,  and  a  general 
knowledge  of  such  laws  and  their  application  is  an  indispen- 
sable requisite,  as  are  als^o  the  principles  of  surveying  and 
platting.  The  effect  of  laws  relative  to  conveyancing,  real  es- 
tates and  titles,  and  the  manifold  and  perplexing  questions 
concerning  the  rights  and  interests  of  parties  that  may  arise 
under  them,  are  subjects  wliicli  should  properly  be  left  to  the 
counsel  who  is  to  examine  and  pass  upon  the  title.  Occasion- 
ally the  same  person  fills  both  offices,  tliounjh  this  is  rare  save 
in  smaller  places  or  sparsely  settled  districts,  and  as  a  rule  the 
union  is  not  productiv^e  of  good  results. 

§  9.  Liability  for  Error.  The  degree  of  intelligence  and 
skill  required  of  a  man  by  the  law,  depends  much  upon  his 
calling.  A  professional  man  must  be  specially  educated  or 
fitted  for  the  duties  of  his  vocation,  and  in  addition  to  the  req- 
uisite technical  knowledge  must  have  reasonable  skill  in  its 
application.^  So  the  understanding  imjdied  from  persons  en- 
gaged in  the  business  of  searching  the  public  records,  exain- 
ining  titles  to  real  estate,  and  making  abstracts  thereof  for 
compensation  is,  that  they  are  possessed  of  the  requisite 
knowledge  and  skill,  and  will  use  due  and  ordinary  care  in 
the  performance  of  their  duties.  For  a  failure  in  eitiier  of 
these  respects,  resulting  in  damages,  the  party  injured  is  en- 
titled  to   recover.*     Nor  can    the  examiner  limit  his  liability 

'  r)an]ior  v.  Caldwell,  R  Minn.  94.  'So  hoUl  where  the  examiner  had 

^Edw.  on  Bailments,  307.  omitted    to  note  on  the  abstract  a 


O  ABSTRACTS    OF    TITLE. 

by  a  clap.se  in  the  certificate  appended  to  the  abstract  with- 
out specially  callini^  his  client's  attention  to  it.  But  to  lix 
the  liability  of  the  examiner  there  must  be  privity  of  contract 
with  the  injured  party,  for  he  can  be  held  answerable  for  his 
errors  only  to  the  person  who  has  employed  him,  and  where, 
in  the  absence  of  fraud,  collusion  or  falsehood,  the  examiner 
has  made  an  erroneous  certificate,  upon  the  strength  of  which 
a  third  person  has  loaned  and  lost  money,  no  liability  attaches, 
notwithstanding  the  fact  that  the  money  had  been  advanced 
on  the  assurances  of  the  abstract,  and  to  the  person  who  had 
caused  same  to  be  made.*  It  has  further  been  held,  that  the 
examiner  is  under  no  obligation  to  show  anything  not  arising 
within  the  dates  of  his  examination,  even  though  it  be  at  the 
time  a  valid  and  subsisting  lien  upon  the  land;  nor  is  he 
bound  to  inquire  or  state,  whether  the  title  vested  in  any 
grantee  during  the  period  covered  by  his  examination  was 
affected  by  any  prior  convej'ance,  or  any  estoppel  growing 
out  of  any  covenants  therein.^ 

§  10.  Miscellaneous.  In  sales  of  land  it  usually  devolves 
on  the  vendor  to  furnish  the  abstract,  which  on  delivery 
and  acceptance  of  deed  becomes  the  property  of  purchaser,  ^ 
and  where  the  owner  of  land,  about  to  execute  a  mortgage,  de- 
livers to  mortgagee,  for  the  purpose  of  decreasing  the  expenses 
of  searching,  an  abstract  of  title  to  the  premises,  it  becomes  a 
part  of  the  security  for  the  loan  and  the  mortgagor  is  not  en- 
titled to  the  possession  of  it  until  the  mortgage  is  paid  or 
discharged.* 

judgment  against  the  property  for  one  who  at  the  time  (prior  to  the 
taxes,  and  its  subsequent  sale  to  sat-  commencement  of  the  examination) 
isfy  s  ime:  Chase  v.  Heaney,  70  111.  had  no  interest  in  the  subject  of  the 
26S;  Clark  v.  Marshall,  34  Mo.  429 j  examination,  but  who  subsequent- 
Bank  V.  Waal,  100  U.  S.  195.  ly,  and  during  the   period   covered 

^  Savings  Bank  v.  Wai-d,  100  U.  S.  by  the  search,  acquired  title  to  the 

195.  same. 

2  Wakefield  v.  Chowen,  26  Mmn.  ^  Chapman  v.  Lee,  55  Ala.  616. 

379.    In  this  case  the  examiner  failed  *  Holm  v.  Wust,  11  Abb.  Pr.(N.  Y.) 

to  show  a  judgment  rendered  against  N.  S.  113. 


CIlAPTEPw  11. 


TITLE  TO  REAL  PROPEKTT. 


1. 

Property     and     title 

d  is  tin- 

§  8. 

Powers. 

guished. 

9. 

Homesteads. 

2. 

Title,  how  acquired. 

10. 

Dower  and  curtesy. 

3. 

CI  .ssification  of  title. 

11. 

Easements  and  servitudes. 

4. 

Sources  of  title. 

12. 

Tenancies. 

5. 

Nature  of  title  in  the 

United 

13. 

Color  of  title. 

States. 

14. 

Evidences  of  title. 

6. 

Estates  under  allodial  titles. 

15. 

Alienation  and  descent. 

7. 

Uses  and  trusts. 

§  1.  Property  and  Title  distinguished.  A  well  defined 
and  stron<^ly  marked  distinction  has  been  made  by  leading 
writers  on  the  subject  of  real  estate,  between  the  property  or 
interest  which  one  has  in  lands,  tenements  and  hereditaments, 
and  the  means  whereby  same  are  held,  or  the  mode  by  which 
they  are  acquired.  This  property  or  interest  in  lauds,  of 
whatever  kind  or  nature,  is  described  in  the  comprehensive 
term  estate.  The  method  of  acquiring  or  holding  same  is 
denominated  title.  The  subject  of  estates,  witli  their  quan- 
tities, qualities,  extent  and  other  attributes,  belongs  to  a 
treatise  on  real  property,  and  will  be  alluded  to  in  this  work, 
only  as  they  incidentally  occur  in  treating  of  the  manner  by 
which  such  estates  are  acquired  or  held. 

§  2.  Title,  how  acquired.  It  may  be  stated  as  an  element- 
ary proposition,  to  which  all  writers  and  jurists  agree,  tliat 
there  exists  but  two  modes  of  acquiring  title  to  real  property: 
namely,  by  descent  or  purcJiase,  the  latter  term  including 
every  legal  method  of  acquisition,  except  that  by  which  an 
heir,  on  the  death  of  an  ancestor,  succeeds  to  the  estate  of  the 

(9) 


10  ABSTRACTS   OF   TITI-E. 

latter  by  operation  of  law.'  The  coirimon  law  estates  of  dower 
and  curtesy  have  been  regarded  by  some  as  projDerly  coining 
within  the  doctrine  of  descents,'''  and  the  statutory  regulations 
of  many  of  the  States  would  strongly  seem  to  favor  this  view. 
"  Others,"  says  Washburn,  "  make  a  distinction  in  respect  to 
estates  acquired  by  purchase,  between  titles  created  by  act  of 
the  law,  and  those  by  act  of  the  parties,  estates  by  escheat  be- 
ing an  example  of  the  first  class."  ^ 

§  3.  Classification  of  Title.  Blackstone  makes  an  elabo- 
rate division  of  title  consiilered  in  relation  to  its  progressive 
development,  and  formulates  the  following  stages:  Naked 
possession;  right  of  possession;  right  of  property  without  pos- 
session, and  riglit  of  property  united  with  possession.*  This 
classification,  which  has  been  followed  and  approved  by  most 
English  and  many  American  writers,  seems  needlessly  prolix 
and  a  trifle  confusing.  Judge  Walker  in  alluding  to  it  says: 
"  such  refinements  serve  to  perplex  rather  than  inform  the 
mind.  The  truth  is  title  means  the  same  thing  as  ownership. 
A  man  may  be  in  possession  of  a  thing  which  he  does  not  own 
and  he  may  own  a  thing  of  which  he  is  not  in  possession," 
and  draws  the  inference  ••'  that  the  perfection  of  title  consists 
in  the  union  of  possession,  with  the  right  of  possession."  "  I*: 
may  be  doubted  whether  Blackstone's  subtile  distinctions  ai-c 
now  generally  recognized  in  this  country,  but  for  purposes  of 
comparison  only,  titles  have  been  classified  as  bad,  doubtful, 
good  and  perfect;  the  latter  being  also  known  as  a  marketable 
title,  or  one  which  a  court  of  equity  considers  so  clear  that  it 
will  enforce  its  acceptance  by  a  purchaser.  A  doubtful  title 
on  the  contrary  being  one  that  the  court  will  not  go  so  far  as 
to  declare  bad,  but  only  that  it  is  subject  to  so  much  doubt 
that  a  purchaser  ought  not  to  be  compelled  to  accept  it.*^  The 
doctrine  of  marketable  titles  is  purely  equitable  and  of  mod- 
ern origin;  at  law,  every  title  not  bad  is  marketable.     A  inoro 

1  2  Blk.  Com.  241 ;  James  v.  Moore,  *  2  Elk.  Com.  195. 

2  Cow.   290;  Green  v.  Blanchar,  40  ^  Walker's  Am.  Law.  317. 

Cal.  194.  «  2  Bou.  Law  Diet.  596 j  RicTimoncl 

2  3  Cruise  Dig.  317.  v.  Gray,  3  Allen,  25. 
8  3  Wash.  Real  Prop.  4. 


TITLE    TO    KEAL    PROPERTY.  11 

pronounced  distinction  is  made  in  tlie  case  of  legal  and  equi- 
table titles  and  their  application  to  estates  is  of  frequent  occur- 
rence in  actnal  practice.  Thongh  originall)'  a})plied  to  estates 
in  land,  the  terms  are  now  extensively  nsed  to  designate  the 
manner  of  acquiring  and  holding  same  as  well.  The  equitable 
title  usually  carries  with  it  the  beneficial  interest  in  the  land, 
together  with  the  incidents  of  ownership,  the  legal  title  being 
held  as  a  mere  naked  trust,  and  is  illustrated  in  the  relations 
of  tlie  government  and  a  purchaser  of  public  land  before  pat- 
ent issues;  a  grantee  under  aland  contract  after  payment  made 
and  before  execution  of  deed,  and  in  the  less  familiar  exam- 
ple wliurc  the  legal  title  has  been  conveyed  to  a  trustee,  the 
cquitaljle  ownership  vesting  in  the  beneficiary  or  cestui  que 
trust.  The  abstract,  as  a  rule,  shows  only  the  legal  title,  un- 
less an  equitable  title  appears  from  the  recitals  of  the  instru- 
ments or  is  plainly  deducible  from  facts  appearing  on  their 
face. 

§  4.  Sources  of  Title.  By  the  Efrglish  law,  the  king,  as 
the  head  and  sovereign  representative  of  the  nation,  was  the 
original  proprietor,  or  lord  paramount  of  all  the  land  in  the 
kingdom,  and  the  true  and  only  source  of  title.^  From  him 
all  the  lands  in  the  realm  were  held,  either  mediately  or  im- 
mediately, by  a  tenure,  of  which  fealty  was  the  great  charac- 
teristic. This  fealty  was  inseparably  incident  to  the  rever- 
sion and  could  never  be  lost  to  the  ultimate  lord.  The  feudal 
system  contemplated  a  prince — the  sovereign,  and  the  people 
— the  subjects,  but  with  the  assumption  of  independence,  the 
people  in  their  collective  capacity  became  sovereign,  and  as 
such  succeeded  to  the  rights  and  prerogatives  formerly  pos- 
sessed by  the  king.  So  all  valid  individual  title  to  land  in 
the  United  States  is  derived  only  from  the  grant  of  the  fed- 
eral government,  in  the  case  of  public  lands;  from  the  State 
governments  of  such  of  the  States  as  entered  the  Union  as 
sovereign  bodies  possessed  of  lands;  or,  from  foreign  powers 
prior  to  the  Revolution,  or  the  acquisition  of  the  territory  by 
the  government,  the  vested   rights  of  the  land  owner  being 

'  3  Kent  Com.  487^  2 Blacks.  Com.  51. 


12  ABSTRACTS    OF    TITLE. 

recognized  in  the  latter  case  by  treaty  at  the  time  of  the  ces- 
sion, or  by  subsequent  confirmation.'  The  king  not  only  pos- 
sessed the  original  but  also  the  ultimate  title,  an  assump- 
tion that  has  never  been  made  by  the  general  government, 
which  parts  with  all  its  title  by  its  grant  or  patent.  Tlie  peo- 
ple of  the  States,  however,  in  their  sovereign  capacity,  are 
declared  to  possess  the  ultimate  property  in  and  to  all  lands 
within  the  jurisdiction  of  the  State,  the  title  to  which  shall  fail 
from  defect  of  heirs,^  though  the  character  in  which  the  State 
takes  is  rather  that  of  a  statutory  heir  of  property  on  default  of 
known  kindred  of  the  decedent.^ 

§  5.  Nature  of  title  in  the  United  States.  "When  by  the 
devolution,  the  dominion  of  the  mother  country  was  thrown 
off,  the  State  in  its  sovereign  capacity,  succeeded  to  the  titles  of 
the  king  and  became  the  proprietor  of  all  the  lands.*  But 
instead  of  lending  tiieni  like  a  feudal  lord  to  an  enslaved  ten- 
antry, she  sold  them  for  the  best  price  they  would  bring,  or 
with  more  than  princelj'^  generosity,  conferred  them  upon  her 
subjects  as  a  reward  for  industry'-  and  courage  in  the  develop- 
ment and  settlement  of  the  countr}^,  or  in  recognition  of  valor 
and  patriotic  devotion  in  her  defense.  Her  patents  all  ac- 
knowledge a  pecuniary  or  valuable  consideration,  and  stip- 
ulate for  no  fealty  or  other  feudal  incident,  '*  The  State  is 
lord  paramount  as  to  no  man's  land."  ^  Though  here,  as  in 
England,  individual  ownership  in  lands  can  be  deduced  only 
from  the  sovereign — the  Crown,  the  ante-revolutionary.  United 
States,  or  State  governments — yet  when  so  acquired  it  is  held 
in  pure  and  free  allodium,  being  the  most  ample  and  perfect 
interest  that  can  be  obtained  in  land  and  denoting  a  full  and 
absolute  ownership;®  "a  time  in  the  land  without  end,"  '  with 

^3  Kent  Com.  488;   Jackson  v.  In-  82;  Johnson  v.  Mcintosh,  8  Wheat, 

graham,  4  Johns.  163;    Jackson  v.  684. 

Hart,  12  Johns.  77.  *  Wallace  v.  Harmstad,  44  Penn. 

23  Kent  Com.  488;   People  v.  Liv-  St.  492;   Van  Ransellser  v.  Smith,  27 

ingston,  8  Barb.  253.  Barb.  157. 

3  Wallace  v.  Harmstad,  44  Pa.  St.  « 1  Bou.  Law  Diet.    115;    1  Wash. 

492.  Real  Prop.  16. 

*■  Commonwealth  v.  Alger,  7  Cush.  ''  Plowden,  555. 


TITLE    TO    EEAL    rKOrEETT.  13 

no  duties  to  a  superior  lord,  or  services  or  fealtj  incident  tliere- 
to.  The  allegiance  which  the  citizen  owes  to  the  State  is 
frequently  spoken  of  as  fealtj,'  but  tliis  is  an  obligation 
arising  from  our  political  economy  and  is  as  binding  on  him 
who  owns  no  land  as  on  him  who  counts  his  acres  by  the 
thousands.  It  is  an  ol)ligation,  reciprocal  to  protection,  re- 
sulting from,  and  growing  out  of  our  political  relations,  and 
in  no  way  affects  the  title  to  land  more  than  to  chattels.^ 

It  is,  however,  a  well-settled  principle,  growing  out  of  the 
nature  of  well-ordered  civil  society,  that  every  holder  of  prop- 
erty, however  absolute  and  unqualified  may  be  his  title,  holds 
it  under  the  implied  liability,  that  its  use  may  be  controlled 
and  regulated  by  the  State  in  such  a  manner  as  not  to  inter- 
fere with  the  equal  enjoyment  by  others  of  their  property,  nor 
be  injurious  to  the  rights  of  the  community,^  and  subject  to 
such  laws  as  the  legislature  may  enact,  to  regulate  the  mode 
of  conveyance,  descent,  right  of  dower,  or  other  rights  grow- 
ing out  of  the  domestic  relations.*  All  property  is  held  sub- 
ject to  those  general  regulations  established  by  law,  which  are 
necessary  to  the  common  good  and  general  welfare. 

§  6.  Estates  under  Allodial  Titles.  The  estate  held  by  an 
allodial  title  is  denominated  a  fee  simple,'  a  name  borrowed 
from  the  land  system  of  Great  Britain,  but  of  far  greater  im- 
port here  than  there.  It  signifies  an  absolute  estate  of  inher- 
itance, clear  of  any  restrictions  to  particular  heirs,  and  is  the 
largest  estate  and  most  general  interest  that  can  be  enjoj^ed 
in  land,  being  the  entire  property  therein,  and  confers  an  un- 
limited power  of  alienation.^ 

Though  usually  described  as  above,  the  estate  is  comprised 
in  the  word  "fee,"  the  addition  of  the  word  "simple"  adds 
nothing  to  the  force  and  comprehensiveness  of  the  term."  A 
sale  of  the  fee  does  not  include  in  the  term  itself,  a  sale  free 
from  incumbrances,  but  only  the  nature  of  the  estate  as  dis- 

'  2  Bou.  Law  Diet.  585,  Art.  "Ten-  '  Commonwoalth  v.  Alger,  7  Ciish. 

ure. "  53;  do.  v.  Tewksbury,  11  Met.  5"). 

2  Wallace  v.  Harmstad,  44  Penn.  *  Barker  v.  Dayton,  28  Wis.  367. 

St.  492;  Carlisle  v.  United  States,  16  ^  Haynes  r.  Bourn,  42  Vt.  686. 

Wall.  147.  « Jecks  r.  Toussing,  45  Mo.  167. 


14  ABSTRACTS   OF   TITLE. 

tini:^nislied  from  a  lesser  or  restricted  one,  and  land  may  be 
sold  in  fee  subject  to  incumbrances,  the  expression  involving 
no  inconsistency.' 

The  fine  distinctions  of  tlie  English  law  in  respect  to  estates 
have  little  or  no  application  in  the  United  States,  and  the 
American  doctrines  on  this  subject,  though  regulated  by  stat- 
ute in  the  different  States  and  hence  differing  some  in  detail, 
are  comparatively  simple.  In  addition  to  the  fee,  or  inher- 
itance, we  have  estates  for  life,  for  years,  and  at  will  and  by 
sufferance.  The  estate  in  fee  tail  is  abolished,  the  entail  be- 
ing limited  to  the  first  taker,  while  the  remainder  carries  the 
fee  simple  absolute.  Estates  of  inheritance  and  for  life  are 
generally  denominated  "  freeholds";  estates  for  years,  "chat- 
tels real."  With  respect  to  the  time  of  their  enjoyment,  they 
are  further  divided  into  estates  in  possession  and  in  expectancy; 
the  latter  being  again  divided  into  estates  commencing  at  a 
future  day,  called  future  estates,  and  reversions.  A  future  es- 
tate is  one  limited  to  commence  in  possession  at  a  future  day, 
either  with  or  without  the  intervention  of  a  precedent  estate,  or 
on  the  determination,  by  lapse  of  time  or  otherwise,  of  a  pre- 
cedent estate,  created  at  the  same  time.  A  reversion  is  the  res- 
idue of  an  estate  left  in  the  grantor  or  his  heirs,  or  in  the  heirs 
of  a  testator,  commencing  in  possession  on  the  determination  ol 
a  particular  estate  granted  or  devised.  Future  estates  are  also 
classed  as  vested  or  contingent.  They  are  vested  when  there 
is  a  person  in  being  who  would  have  an  immediate  right  to 
the  possession  of  the  lands,  upon  the  ceasing  of  the  intermedi- 
ate or  precedent  estate.  They  are  contingent  whilst  the  per- 
son to  whom,  or  the  event  upon  which,  they  are  limited  to 
take  effect,  remains  uncertain.  In  respect  to  the  number  ami 
connection  of  their  owners,  estates  are  divided  into  estates 
in  severalty,  in  joint  tenancy  and  in  common.^  As  a 
rule,  every  conveyance  or  devise  of  lands  is  to  be  deemed  a 
fee  simple,  if  a  less  estate  is  not  limited  by  express  words,  or 

'  Caal  V.  Higgins,  23  N.  J.  Eq.  308.  the    states,    but    frequently  widely 

2  Estates,  in  the  United  States,  ai-e  divergent    in    detail.     The    statuto 

essentially  creations  of  the  statute,  should  always  be  consulted  in   coa- 

preserving  a  general  harmony  in  aU  struing  them. 


TITLE    TO    EEAL    PEOrERTY.  15 

does  not  appear  otherwise  by  construction  or  operation  of  law,' 
and  future  estates  are  alienable  in  the  same  manner  as  estates 
in  possession,  by  deed  of  bargain  and  sale  without  covenants.'^ 

§  7,  Uses  and  Trusts.  The  ancient  doctrine  of  uses  and 
trusts  ])revails  to  a  limited  extent  in  the  United  States,  tliough 
its  effect  is  by  no  means  uniform.  A  majority  of  the  States, 
fullowino'  the  example  of  Xew  York,  have  abolished  passive 
trusts  where  the  trustee  holds  only  the  naked  formal  title,  the 
whole  beneficial  interest  being  vested  in  the  cestui  que  trusty 
the  statute  confirming  to  such  beneficiary  a  legal  estate  therein 
of  the  same  quality  and  duration,  and  subject  to  the  same  con- 
ditions, as  his  beneficial  interest.'  The  doctrine  of  resulting 
trusts  has  been  much  modified,  and,  as  a  rule,  no  implied  or 
resulting  trust  is  effectual  to  defeat  or  prejudice  the  title  of  a 
purchaser  for  a  valuable  consideration,  and  without  notice  of 
such  trust.  Express  trusts  are  usually  regulated  by  statute, 
and  are  created  for  the  sale  of  land  for  the  benefit  of  creditors, 
legatees,  or  for  the  purpose  of  satisfying  any  charge  thereon; 
for  the  collection  and  application  of  the  rents  and  profits  of 
land;  and  for  the  beneficial  interests  of  any  person  or  persons, 
when  such  trust  is  fully  expressed  and  clearly  defined  upon 
the  fiice  of  the  instrument.  Where  the  classes  of  express 
trusts  are  specifically  enumerated  by  statute,  the  creation,  for 
any  puri)ose,  of  any  trust  not  so  enumerated  vests  no  estate  in 
the  trustee,  though  if  valid  as  a  power,  the  lands  to  which  the 
trust  relates  remains  in  or  descends  to  the  persons  otherwise 
entitled,  subject  to  the  execution  of  the  trust  as  a  power.  No 
particular  form  of  words  is  necessary  to  create  a  trust,  and 
effect  will  always  be  given  to  the  intention  of  the  parties.* 

§  8.  Powers.  Closely  allied  to  trusts,  and  partaking  some- 
wiiat  of  their  nature,  are  powers,  the  creation,  construction 
and  execution  of  which,  are,  in  a  majority  of  the  States,  gov- 

'  Leiter  v.  Sheppard,  8")  111.  242.  ances  to  use  are  generally  aliolished 

2  Goodel  V.  Hibbard,  32  Mich.  47.  in  all  the  States:   4  Kent's  Com.  ;JOS; 

^  The  above   statements  are  sub-  Verdin  v.  Slocum,  71  N.  Y.  345, 

stantially  true  of  all  the  States  whose  *  Fisher  v.  Fields,  10  Johns.  495; 

procedure  is  the  same  as,  or  similar  Saylor  v.  Plaine,  31  Md.  158. 

to,  the  N.  Y.  Revision,  tmd  convey- 


16  ABSTRACTS    OF   TITLE. 

erned  by  express  statutory  provisions.  A  power,  as  defined, 
is  an  authority  to  do  some  act  in  relation  to  lands,  or  tiie  cre- 
ation of  estates  therein,  or  of  charges  thereon,  which  the 
owner  granting  or  reserving  such  power  might  himself  law- 
fully perform,  and  no  person  is  capable,  in  law,  of  grant- 
ing a  power,  who  is  not  at  the  same  time  capable  of  alien- 
ating some  interest  in  the  lands  to  which  the  power  relates. 
Powers  are  general  or  special,  and  beneficial  or  in  trust. ^  A 
power  is  general  when  it  authorizes  the  alienation  in  fee,  by 
deed,  will,  or  charge  of  the  lands  embraced  in  the  power,  to 
any  alienee  whatever,  and  is  a  simple  form  of  familiar  occur- 
rence. It  is  special,  when  the  appointee  is  designated;  or 
where  it  authorizes  a  conveyance  of  a  particular  estate  or  in- 
terest less  than  a  fee.  A  general  or  special  power  is  benefi- 
cial, when  no  person  other  than  the  grantee,  has,  by  the  terms 
of  its  creation,  any  interest  in  its  execution.  A  general  power 
is  in  trust,  when  any  person,  other  than  the  grantee,  is  desig- 
nated as  entitled  to  the  proceeds,  or  other  benefits  to  arise  from 
the  alienation  of  the  lands.  A  special  power  is  in  trust,  when 
the  disposition  which  it  authorizes  is  limited  to  be  made  to 
any  particular  persons  other  than  the  grantee;  or  when  any 
class  of  persons,  other  than  the  grantee,  is  entitled  to  any  ben- 
efit from  the  disposition  or  charge  authorized  by  the  power. 
A  povver  may  be  granted  by  a  suitable  clause  contained  in  the 
conveyance  of  some  estate  in  the  lands  to  which  same  relates; 
or  by  devise  contained  in  a  last  will  and  testament,  and  may 
be  vested  in  any  person  capable  in  law  of  holding  lands,  but 
can  not  be  executed  by  any  person  not  capable  of  alienating 
lands  holden  by  such  person.  A  power,  technically  speaking, 
is  not  an  estate,  but  is  a  mere  authority,  enabling  a  person, 
through  the  medium  of  the  statute,  to  dispose  of  an  interest 
in  real  property,  vested  either  in  himself  or  in  another  per- 
son,'^ and  where  a  power  is  executed,  the  person  taking  under 
it  takes  under  him  who  created  the  power,  and  not  under  him 

% 

'  4  Kent  Com.   319;   2  Bou.  Law  differs  somewhat  from  the  common 

Diet.  356.     The  classification  above  law  classification. 

given  is  that  which  is  now  generally  ^  Burleigh  v.  Clough.  52  N.  H.  267; 

observed  in  this  country,   though  it  2  Brest.  Abstracts,  275. 


TITLE    TO    REAL    TROPERTl'.  17 

who  executes  it.'  A  power  to  sell  land  can  only  he  exercised 
in  the  manner  and  for  the  precise  purpose  declared  and  in- 
tended by  the  donor,  and  when  the  purpose  becomes  wholly 
unattainable,  the  power  ceases.^  Ln  the  construction  of  powers, 
the  intention  of  the  parties,  if  compatible  with  law,  must  i^ov- 
ern;  and  the  intention  is  to  be  determined  iVom  the  instru- 
ment creating  the  power.* 

§  9.  Homesteads.  The  statutes  of  all  the  States  have  in- 
jected into  the  law  of  real  property,  as  applied  in  this  country, 
a  new  quality,  unknown  to  the  common  law,  denominated 
"homesteads."  The  homestead  is  usually  a  constitutionally 
guaranteed  right  annexed  to  land,  whereby  the  same  is  ex- 
empted from  sale  under  execution  for  debt.  No  uniform  rule 
can  be  given  for  its  ascertainment  being  variously  measured 
by  a  definite  money  value,  or  a  specific  appropriation  of 
land.  Nor  can  any  general  definition  of  its  character  be  given 
other  than  the  above,  as  the  authorities  are  by  no  means  har- 
monious in  prescribing  its  limits,  or  defining  its  effect.  In 
some  of  the  States  the  homestead  is  an  estate,*  limited  only 
as  to  its  value,  and  not  by  any  specific  degree  of  interest  or 
character  of  title  in  the  particular  property  to  which  it  at- 
taches, and  when  the  property  does  not  exceed  the  statutory 
valuation,  the  estate  embraces  the  entire  title  and  interest  of 
the  householder  therein,  leaving  no  sejmrate  interest  in  him 
to  which  liens  can  attach  or  which  he  can  alien  distinct  from 
the  estate  of  homestead.*  Such  estate  is  also  regarded  as  a  de- 
terminable fee."  The  right  of  homestead  in  a  majority  of  the 
States,  however,  is  held  to  be  but  a  privilege  of  occupancy 
against  creditors,''  the  continuance  of  which  depends  upon 
the   continuance  of  prescribed  conditions.*     When  once  ac- 

1  Legget  V.  Doremus,  25  N.  J.  Eq.  *  Merritt  v.  IMerritt,  97  Til.  243. 

122.  «  Poe  V.  Hardie,  65  N.  C.  447;  Ha.s- 

2Hetzel  V.  Barber,  69  N.  Y.  1.  lam  r.  Campbell,  60  Ga.  650. 

*  Guion  V.  Pickett,  42  Miss.   77;  '  Brame  v.   Craig,  12   Busli  (Ky.), 
Jackson  v.  Veeder,  11  Johns.  169.  404;  Casebolt  v.  Donald.son,  67  Mo. 

*  Littiejohn  v.  Egerton,    77  N.  C.  308;  Drake  v.  Kinsell,  3S  Mich.  232. 
379;  Eldridge  v.    Pierce,  90  111.  474;  ^Hillr.  Franklin,  54  Miss.  632. 
Jenkins  v.  Volz,  54  Tex.  636. 

2 


18  '  ABSTRACTS    OF    TITLE. 

quired  it  is  a  vested  rio^ht,'  (tliou^jh  it  seems  it  may  be  im- 
paired by  subsequent  legislation,'^)  and  can  only  be  lost  by 
abandonment.^  The  homestead  law  does  not  vest  in  the  own- 
er any  new  rights  of  property  but  simply  imposes  restric- 
tions on  the  creditor  in  seeking  satisfaction  for  his  debt,*  and 
the  protection  aftbrded  by  it  attaches  to  an  equitable  title 
with  the  same  force  as  to  the  legal  title.^  Where  there  is  an 
abandonment,  with  a  fixed  intention  not  to  return,  the  home- 
stead may  be  subjected  to  the  demands  of  creditors,  but  the 
question  is  almost  exclusively  one  of  intent,  and  absence  for 
an  indefinite  period  is  not  sufficient  to  establish  the  fact  of  an 
abandonment,  unless  accompanied  with  proof  of  intent  ujt  to 
return.®  In  every  State  special  restrictions  have  been  ]»hiced 
on  the  alienation  of  the  homastead,  it  bsing  in  contemplation 
of  law  the  last  retreat  and  shelter  of  the  family;  and  though 
its  sale  is  permitted,  the  voluntary  act  of  either  husband  or 
wife,  or  both,  would  be  ineffectual  for  that  purpose,  except  in 
the  manner  provided  by  statute,^  and  as  a  rule,  the  alienation 
of  homestead  property  by  the  husband  without  consent  of  the 
wife  is  an  absolute  nullity,  and  the  purchaser  acquires  no  title 
whatever.*  When  a  party  derives  title  to  property  in  good 
faith,  and  in  the  prescribed  methods,  through  one  who  has  a 
liomestead  right  therein,  he  will,  it  seems,  succeed  to  his 
grantor's  rights,  and  take  the  property  exempt  from  his 
grantor's  debts.® 

§  10.  Dower  and  Curtesy.  One  of  the  common  law  inci- 
deuts  of  real  estate  is  dower,  being  that  provision  which  the 
law  makes  for  a  widow  out  of  the   lands  or  tenements  of  her 

'  Barret  v.  Messner,  30  Tex.    604;  kum  v.  Wood,  58  Ala.  642. 
Barber  t).    Roarbeck,  36  Mich.   399.  ^Rogers  t\  Renshaw,  37  Tex.  625; 

2  Harris  v.  Glenn,  56  Ga.  94.  Abell  v.  Lathrop,  47  Vt.  375;  Bar- 

sQarr  w.  Rising-,  62  111.  14;  Crook  nett  v.  Mendenhall,  42  Iowa,  296; 

V.  Lunsford,  8  Reporter,  62.  Richards  v.  Green,  78  111.  54;  Bank 

*  Bank  y.  Green,  78  N.  C.  247.  v.   Lyons,  52  Miss.   181;   Miller    v. 

5  Allen  V.    Hawley,     66  111.    164;  Marx,  55  Ala.  322. 

Smith  V.  Chenault,  48  Tex.  455.  »  Shackelford  v.  Todhuuter,  4  111. 

6  McMillan  v.  Warner,  .38  Tex.  410;       App.  271 ;  Adrian  v.  Shaw,  82  N.  C. 
Potts  r.  Davenport,  79  111.  455.  474;  Leupold  v.  Kruse,  95  III.  440. 

'  Fiegef.  Garvey,  47  Cal.  371;  Bal- 


TITLE   TO    REAL    PROPERTY.  19 

deceased  lius.band,  for  lier  sii])port  and  the  nurture  of  her 
children.'  The  common  hiw  right  of  dower  no  longer  exists, 
however,  in  a  majority  of  the  States,  the  rights  of  the  surviving 
wife  in  the  real  estate  of  lier  husband  being  those  created  by 
statute  alone,  and  questions  upon  them  must  be  determined 
solely  by  reference  to  the  statute.''  Xo  uniform  measure,  ei- 
ther as  to  quantity  or  quality,  has  been  adopted,  but  in  the 
main  the  estate  conferred  conforms  to  that  of  the  common 
law  and  consists  of  the  use,  during  her  natural  life,  of  one 
tiiird  part  of  all  the  lands  whereof  her  husband  was  seized  of 
an  estate  of  inheritance  at  any  time  during  the  marriage. 
During  the  lifetime  of  the  husband,  the  wife  has  only  an 
inchoate  right  which  is  not  an  estate  in  the  land,  but  a  mere 
contingent  interest  tliat  attaches  to  the  land  as  soon  as  there 
is  the  concurrence  of  marriage  and  seizin.  Tiiis  interest  be- 
comes fixed  and  certain  upon  the  death  of  the  husband,  and 
after  assignment  of  the  dower,  develops  into  a  freehold  estate 
in  land.^  During  the  marriage,  no  act  of  the  husband  alone 
could,  at  common  law,  bar  or  extinguish  this  interest,  which 
in  England  was  accomplished  by  levying  a  tine  or  suffering  a 
common  recovery.*  In  the  United  States  a  woman  may  be 
barred  of  her  dower  by  jointure,  settled  on  her  before  mar- 
riage, or  by  joining  with  her  husband  in  a  deed  of  conveyance, 
properly  acknowledged.*  Before  dower  has  been  assigned,  it 
can  only  be  released  to  the  owner  of  the  fee,  or  to  some  one  in 
privity  with  the  title  by  his  covenants  of  warranty.  But 
where  the  former  owner  of  the  fee  in  land  in  which  dower 
rights  still  exist,  has  conveyed  the  same  with  warranty,  he 
may  purchase  the  right  for  the  benetit  of  his  grantee,  however 
remote,  and  thus  prevent  a  breach  of  his  covenants.®  The  re- 
lease of  dower  which  a  married  woman  makes  by  joining  with 
her  husband  in  a  conveyance  of  his  land,  operates  against  her 
only  by  estoppel,  and  can  be  taken  advantage  of,  only  by  those 

'  2  Black.  Com.  130;  4  Kent  Com.  *  2  Black.  Com.  137;  4  Kent's  Com. 

35.  51. 

2  Gaylord  r.  Dodge,  31  Ind.  41.  '4Kent  Com.  60;  Elmdorf  r.  Lock- 

=•  Elmdorf  V.  Lockwood,  57  N.  Y.  wood,  57  N.  Y.  322. 

322.  6  La  Framboise  v.  Crow,  56  111.  197. 


20  ABSTRACTS    OF    TITLE. 

who  claim  under  that  conveyance,'  and  if  the  conversance  is 
void,  or  ceases  to  operate,  she  is  ai2;ain  clothed  with  the  ri<^ht 
which  she  has  released.  Daring  coverture,  the  wife's  inchoate 
right  of  dower  is  incapable  of  beinoj  transferred  or  released, 
except  to  one  who  has  already  had,  or  by  the  same  instrument 
acquires  an  independent  interest  in  the  estate.^  Tlie  right  is 
not  such  an  estate  as  can  be  leased  or  mortgaged,^  neither  can 
a  married  woman  bind  herself  personally  hy  a  covenant  or 
contract  aftectino'  her  rio^ht  of  dower  durinj^  the  marriaije. 
Hence,  a  deed  executed  by  husband  and  wife  with  covenant  of 
warranty,  does  not  estop  the  wife  from  setting  up  a  subse- 
quently acquired  title  to  the  same  lands.*  The  inchoate  right 
of  dower  not  being  the  subject  of  a  conveyance  in  any  of  the 
usual  forms  by  which  real  property  is  transferred,  and  the 
doctrine  of  estoppel  by  which  subsequently  acquired  titles  are 
made  to  inure  to  the  benefit  of  former  grantees  being  inap- 
plicable, it  follows  that  the  grantee  or  mortgagee  claiming 
under  an  instrument  executed  by  a  married  woman  during 
coverture,  acquires  no  title  or  interest  in  the  dower  of  the 
grantor  or  mortgagor  when  the  estate  becomes  absolute,  wheth- 
er dower  has  been  assigned  or  not.^  But  in  all  cases,  where 
the  wife  unites  with  her  husband  in  -a  conversance,  properly 
executed  by  her,  which  is  effectual  and  operative  against  the 
husband,  and  which  is  not  superseded  or  set  aside  as  against 
liim  or  his  grantee,  her  right  of  dower  is  forever  barred  and 
extinguished,  for  all  purposes  and  as  to  all  persons.^  Tenancy 
by  the  curtesy  has  been  generally  abolished  and  the  husband 
takes  a  statutory  allowance  from  the  deceased  wife's  estate, 
the  quantity  and  quality  varying  in  the  different  States.  Ten- 
ancies in  dower  or  curtesy  stand,  like  all  other  estates  of  free- 
hold for  life,  necessarily  subjected   to  the  charges,  duties  and 

^Malloney  V.  Horan,  49  N.  Y.   Ill;  *  Jackson    v.    Yanderheyden,    17 

Lockett  V.  James,  8  Bush  (Ky),  28;  Johns.  167. 

French  v.  Crosby,  61  Me.  502.  ^  Marvin  v.  Smith,  46  N.  Y.  571 ; 

2  Robinson   v.  Bates,  3  Met.    40;  Carson  v.  Murray,  3  Paige,  483. 

Tompkins  v.  Fonda,  4  Paige,  448.  ^  Elmdorf  v.  Lockwood,  57   X.  Y. 

sCroade  v.  Ingraham,  13  Pick.  33.  322. 


TITLE   TO    KEAL    PROPERTY.  21 

services  to  which  the  estate  may  be  liable,  in   proportion   to 
the  interest  therein.^ 

§  11.  Easements  and  Servitudes.  An  easement  has  been 
detineJ  by  Washburn,  as  "a  right  in  the  owner  of  one  parcel 
of  land,  by  reason  of  sucli  owp.ersliip,  to  use  the  land  of  an- 
other for  a  special  purpose  not  inconsistent  with  a  general 
property  in  tlie  owner."  ^  Easements  are  as  various  as  the 
exigencies  of  domestic  convenience  or  tlie  purposes  to  wliich 
buildings  and  bind  may  be  apj)lied,'^  and  are  created  by  grant, 
confirmation,  reservation,  or  prescriptive  user.  The  owner  in 
fee  of  land  may  impose  upon  it  any  burden,  however  inju- 
rious or  destructive,  not  inconsistent  with  his  general  right 
of  ownership,  if  such  burden  be  not  in  violation  of  public 
policy,  and  does  not  injuriously  affect  the  rights  or  property 
of  others.*  An  easement  may  be  created,  or  reserved  by  an 
implied  grant,  when  its  existence  is  necessary  to  the  enjoy- 
ment of  that  which  is  expressly  granted  or  reserved,  upon  the 
principle  that,  where  one  grants  an3^thing  to  another,  he 
thereby  grants  him  the  means  of  enjoying  it,  whether  ex- 
pressed or  not,^  but  easements  exist  as  appurtenant  to  a  grant 
of  lands  only  by  reason  of  a  necessity  to  the  full  enjoyment 
of  the  property  granted.  Nothing  passes  by  implication,  or 
as  incident  or  appurtenant,  except  such  privileges,  riglits  and 
easements  as  are  directly  necessary  to  the  proper  enjoyment 
of  the  granted  estate,  and  the  necessity  measures  the  extent 
and  duration  of  the  right.  When  the  necessity  ceases,  the 
rights  resulting  from  it  cease."  It  must  be  an  actual  and  a  di- 
rect necessity.  A  mere  convenience  is  not  sufficient  to  create 
or  convey  a  right  or  easement,  or  impose  burdens  on  lands, 
other  than  those  granted,  as  incident  to  the  grant.'     Ease- 

1  Peyton  v.  .JefFrics,  50  111.  143.  Dillman  v.  Hoffmnn,  38  Wis.  559. 

2  2  Wash.  Re.il  Prop.  2");  Meek  v.  «  Hancock  v.  Wentworth.  5  Met. 
Breckenridge,  29  Ohio  St.  642.                446;  Carey  v.  Rae,  12  Rep.  523. 

3  1  Bou.  Law  Diet.  516.  '  Ogden  v.  Jennings,  62  N.  Y.  526; 
*Van    Rensselaer  v.  R.  R.  Co.  1       Holmes    v.   Seely,    19   Wend.   507; 

Hun  (N.  Y.),  507.  Warren  v.  Blake,  54  Me.  27u;  Carey 

*  Lanier  v.  Booth,  50  Miss.  410;      v.  Rae,  12  Reporter,  523. 
Pingree  v.  McDufFe,  56  N.  H.  306; 


22  ABSTRACTS   OF   TITLE. 

iiients  of  necessity,  when  the  title  to  the  dominant  estate  and 
to  the  servient  estate  unite  in  a  common  owner,  are  merged 
and  lost.  On  separate  conversances  of  the  estates  by  the  com- 
mon owner,  such  easements  are  not  revived,  nor  treated  as 
having  existed  during  the  time  the  two  estates  were  in  the 
common  owner,  but  are  re-created  bj  the  conveyance  of  the 
estate  separately,  and  arise  from  the  application  of  the  rule 
above  stated.'  In  respect  to  the  acquisition  of  easements  by 
user,  no  universal  rule  of  law  as  to  the  effect  of  evidence  of 
particular  facts  can  be  laid  down,  and  when  established  by 
prescription,  or  inferred  from  user,  such  easements  are  lim- 
ited to  the  actual  user.  A  right  claimed  b}'  user  is  only  co- 
extensive with  the  user.''  Special  easements  are  created  by- 
grant  or  confirmation,  or  may  be  reserved  by  special  reser- 
vation in  a  conveyance  of  lands,  and  easements  created  in  this 
manner  do  not  cease,  even  though  the  necessity  for  same  may 
liave  ceased.'  A  license  is  an  authority  to  enter  upon  the 
lands  of  another  and  do  a  particular  act  or  series  of  acts,  with- 
out possessing  any  interest  in  the  land.  A  claim  for  an  ease- 
ment must  be  founded  upon  a  grant,  by  deed  or  writing,  or 
upon  prescription  which  presupposes  a  grant,  for  it  is  a  per- 
manent interest  in  another's  land;  but  a  license,  conveying 
no  estate  or  interest,  may  be  by  parol.  It  is  founded  in 
personal  confidence,  is  not  assignable,  and  if  executory  is  rev- 
ocable at  the  pleasure  of  the  grantor.  The  distinction,  how- 
ever, is  quite  subtile  and  it  becomes  difficult  in  many  cases  to 
discern  a  substantial  diff'erence  between  them.* 

§  12.  Tenancies.  Next  to  a  fee  simple,  the  most  common 
estate  known  to  our  law  is  an  estate  for  years,  being  a  right 
to,  or  contract  for,  the  possession  and  profits  of  lands  in  con- 
sideration of  a  recompense  called  reut.^  Estates  for  years,  for 
life,  and  at  will  or  by  suff'erance,  are  usuallj'-  denominated 
tenancies,  the  holders  thereof  being  mere  occupants  while  the 

1  Mil'er  v.  Lapliam,  44  Vt.  416.  *  Mumford  v.  Whitney,  15  Wend. 
^Brooks  V.  Curtiss,  4Lans.  (N.  Y.),      380;  Thompson  v.  Gregory,  4  Johns. 

283.  81;  3  Kent  Com.  452. 

2  Atlanta  Mills  v.  Mason,  120  Mass.  *  4  Cruise,  51. 
244. 


TITLE    TO    KEAL    rKOPEKTY,  23 

nltiinate  title  remains  in  the  proprietor  of  tlie  land.  In  es- 
tates for  years,  both  the  time  as  well  as  the  estate  itself  are 
called  a  term.  Sncli  an  estate  is  not  an  interest  in  the  land 
itself  but  only  of  the  use  and  possession  of  same  for  a  definite 
period,  lience  a  tenant  is  not  said  to  be  seized  of  the  land,  but 
only  possessed  of  the  term.  The  estate  is  of  frequent  occur- 
rence in  the  examination  of  titles  and  often  rivals  in  dignity 
and  importance  the  fee  itself.  It  is  created  by  an  instrument 
called  a  lease,  and  is  terminated  by  its  own  limitation;  by 
forfeiture,  in  consecjuence  of  a  breach  of  some  express  stipu- 
lation or  covenant;  or  by  operation  of  law  termed  a  merger, 
where  the  tenant  by  any  means  becomes  seized  of  the  fee  of  the 
reversion.  The  tenancy  may  also  be  terminated  by  a  surrender 
of  the  lease  to  the  landlord,  or  wiiere  the  subject-matter  of  the 
lease  wholly  perishes.  The  tenant  is  never  permitted,  for 
reasons  of  sound  public  policy,  to  controvert  his  landlord's 
title,  or  to  set  up  against  him  a  title  acquired  by  himself 
during  his  tenancy  which  is  hostile  in  its  character  to  that 
which  he  acknowledged  in  accepting  the  demise.' 

§  13.  Color  of  Title.  A  person  is  properly  said  to  have 
color  of  title  to  lands  when  he  has  an  apparent  though  not  a 
real  title  to  the  same,  founded  upon  a  deed  which  purports  to 
convey  them  to  him,^  and  a  claim  to  real  property  under  such 
a  conveyance,  however  inadequate  it  may  be  to  carry  the  true 
title,  or  however  incompetent  the  grantor  may  be  to  convey 
such  title,  is  strictly  a  claim  under  color  of  title.^  Possession 
under  color  of  title  for  the  period  of  statutory  limitation,  con- 
fers upon  the  holder  a  perfect  title  in  law,  and  where  one  takes 
possession  under  a  deed  giving  color  of  title,  his  possession 
may  be  transferred  to  subsequent  parties,  and  the  possession 
of  the  different  holders  may  be  united  so  as  to  make  up  the 
statutory  period,  the  operation  being  technically  called  tack- 
ing.* Titles  acquired  in  this  manner  must,  however,  show 
connected  possession,  and  a  privity  of  grant  or  descent. 
Those  who    hold    lands    independently   of  jirevious  holders, 

1  2  Bou.  Law  Diet.  9.  » Edg-erton  v.   Bird,   6  Wis.  527; 

^  Seigneurct  v.  Fahcy,  10  Roportcr,       Hinkloy  r.  Greene,  52  III.  228. 
777;  Rigor  v.  Frye,  62  111.  507.  *  Cooper  v.  Ord,  GO  Mo.  420. 


21  ABSTKACTS   OF    TITLE. 

their  several  possessions  having  no  connection,  can  not  so 
tack  their  possession  as  to  avail  themselves  of  that  which  has 
gone  beiore.* 

§  14.  Evidences  of  Title.  There  is,  strictly  spealving,  hut 
one  species  of  title  to  lands,  and  that  the  lecjal  title.  Indi- 
viduals may  possess  equities  of  recognized  potency,  but  such 
equities  after  all  do  not  constitute  title,  although  the_y  may 
carry  with  them  the  right  to  the  title  and  the  entire  beneficial 
interest.  Courts  of  equity  may  grant  relief  to  the  holders  of 
Buch  equities,  but  at  law  the  legal  title  must  always  pj'evail.^ 
A  sale  of  real  property,  whether  judicial  or  voluntary,  does 
not  pass  title,  but  only  gives  a  right  to  a  conveyance  of  same 
according  to  the  terms  thereof,^  and  the  purchaser  can  not  be 
treated  as  the  legal  owner  of  the  property,  until  it  has  been 
vested  in  him  by  deed,  duly  executed  by  proper  authority.^ 
The  evidences  of  legal  title  are  prescribed  with  more  or  less 
particularity  by  statutory  provisions  in  all  the  States,  and 
consist  of  voluntary  grants  by  the  sovereign,  or  individual; 
conveyances  resulting  from  judicial  proceedings;  regular  de- 
scents in  the  manner  provided  by  law;  or  continuous  posses- 
sion which  presupposes  some  one  of  the  other  three  methods. 

§  15.  Alienation  and  Descent.  The  Constitution  of  the 
United  States  declares  that  Congress  shall  have  power  to  dis- 
pose of  and  make  all  needful  rules  and  regulations  respecting 
the  territory  and  other  property  belonging  to  the  government, 
and  under  this  provision  the  sale  of  the  public  lands  has  been 
placed  by  statute  under  the  control  of  the  Secretary  of  the 
Interior.  To  aid  him  in  the  performance  of  this  duty,  a 
bureau  ha?  been  created,  at  the  head  of  which  is  the  com- 
migsioner  of  the  General  Land  office,  with  many  subordinates. 
To  them,  as  a  special  tribunal.  Congress  has  confided  the  ex- 
ecution of  the  laws  which  regulate  the  disposal  and  general 
care  of  these  lands,  and  has  also  enacted  a  system  of  laws  by 
which   rights  to  these  lands  may    be  acquired,  and  the  title 

'  Crispen  ».  Hannavan,  50  Mo.  536.  ^  Semple  v.  Bank,  6  Reporter,  9. 

^BagneltJ.  Broderick,  13Pet.  436;  *Page  v.   Rogers,    31    Cal.   294; 

Fenu  V.  Holme,  21  How.  481.  Smith  r.  Colvin,  17  Barb.  157. 


TITLE   TO    KEAL    rROPERTY.  25 

of  the  government  conveyed  to  tlie  citizen.'  Congress  lias 
tlie  sole  23ower  to  declare  the  effect  and  dignity  of  titles 
emanating  from  tlie  United  States,'^  and  the  States  can  not  in- 
terfere with  the  primary  disposition  of  the  soil  by  the  general 
government.  Wlietlier  a  title  to  a  tract  of  public  land  has- 
passed  from  the  United  States,  is  a  question  depending  upon 
statutes  enacted  by  Congress.  After  title  has  passed,  it  be- 
comes subject  to  the  laws  of  the  State  in  which  it  lies,*  and  to 
the  laws  of  such  State  recourse  must  be  had  for  the  rules 
which  govern  its  descent,  alienation,  and  transfer,  and  for  the 
effect  and  construction  of  its  conveyances.*  All  the  means  by 
which  the  title  to  real  property  is  transferred,  whether  by 
deed,  by  will,  or  by  judicial  proceeding,  are  subject  to,  and 
may  be  governed  by,  the  legislative  will  of  the  State  in  which 
it  lies,  except  where  such  law  impairs  the  obligation  of  a 
contract,  and  all  the  laws  of  a  State  existing  at  the  time  a  con- 
veyance or  contract  is  made,  which  affect  the  rights  of  the 
parties  to  the  same,  enter  into  and  become  apart  of  it.^  The 
State  possesses  the  sole  power  to  regulate  the  modes  of  trans- 
fer, and  the  solemnities  which  accompany  them,  and  title  can 
only  be  acquired,  passed  or  lost  in  accordance  with  such  reg- 
ulations,® though  it  would  seem  that  in  the  interpretation  of 
deeds  personal  covena7its  can  not  be  implied  if  not  authoi'ized 
by  the  laws  of  the  State  where  the  deed  was  made,''  while  in 
some  States  the  rule  as  above  stated  has  been  so  modilied  by 
statute  that  lands  mnj  be  as  effectively  conveyed  by  conform- 
ing to  the  law  of  the  place  where  the  deed  is  executed  and 
acknowledged.*  In  such  case  proof  of  such  conformity  should 
accompany  the  conveyance. 

1  United  States  v.  Scliurz,  102  U.  Cormickt^.  Snllivant,  10  Wheat.  102. 

S.  378.  5  R,.i„e  V.  Ins.   Co.   96  U.  3.  627; 

^Baofnellv.  Brorlerick,  l?>Pet.  436.  Bronson  '.  Kinzie,  1  How.  311. 

8  Wilcox  «.  Jackson,  13  Pet.  49S.  « Story's  Conf.  Laws,  708. 

*McGoon    D.  Scales,   9  Wall.  23;  '  Bethel  ».  Bethel,  54  Ind.  428. 

Clark  V.  Graham,  6  Wheat,  hll;  Mc-  « Hoadlcy  v.  Stephens,  4  Neb.  431. 


CHAPTER  III. 


TITLE  BY  DESCENT. 


§  1.  Nature  of  the  title.  §  5.  Adoption. 

2.  Rules  of  descent.  6.  Proof  of  heirship. 

3.  Consanguinity.  7.  Proof  of  death. 

4.  Affinity.  8.  Conveyances  by  heirs. 

§  1.  Nature  of  the  Title.  Dt.'scent,  or .  hereditary  succes- 
sion, is  the  title  whereby  one  person,  upon  the  deatli  of  an- 
other, succeeds  to,  or  acquires  the  estate  of  the  latter  as  heir 
at  law,  the  estate  so  derived  being  called  an  inheritance.* 
Though  of  universal  observance,  iidieritance  is  not  a  natural 
right,  but  purely  statutory,  and  tlierefore  arbitrary,  absolute 
and  unconditional.^  An  heir  at  law  is  the  only  person  who, 
by  the  common  law,  becomes  the  owner  of  land  without  his 
own  agency  or  assent,  the  law  casting  the  title  upon  him  with- 
out regard  to  his  wishes  or  election,'^  and  when  the  right  of 
inheritance  is  fully  established  by  strict  compliance  with  the 
law  relating  to  descents,  proof  of  heirship,  etc.,  the  title  thus 
conferred  is  of  the  highest  dignity  and  effectual  for  all  pur- 
poses. In  the  absence  of  probate  proceedings  or  a  judicial 
determination  of  the  rights  of  the  heirs,  titles  depending  on 
descent  are  to  be  viewed  with  jealousy  and  accepted  with  the 
greatest  caution,  and  particularly  is  this  the  case  where  title  is 
asserted  by  descent,  by  an  heir  in  a  remote  degree  from  the  in- 
testate, or  common  ancestor.  The  title  to  the  land  of  an  in- 
testate vests  immediately  in  the  heir  who  holds  same  in  his 
own  right,  but  charged  with  the   payment  of  the  ancestor's 

» 2  Black.  Com.  201;  4  Kent  Com.  s.S  Wash.  Real  Prop.   6;    Wms. 

•374.  Real  Prop.  75. 

*  Tyler  v.  Reynolds,  53  Iowa,  146. 

(26) 


TITLE   BY    DESCENT.  27 

debts,'  and  until  after  administration  the  estate  is  defeasible 
and  liable  to  be  defeated  bj  a  sale  made  in  due  course  of  ad- 
ministration, becomin;^  absolute  only  after  the  debts  are  extin- 
guished.^ The  heirs  are  said  to  t^ike  per  capita  or  per-  stirpes, 
that  is  direct,  or  in  their  own  right,  they  standing  in  equal 
degree,  and  receiving  equal  shares;  or,  by  right  of  representa- 
tion, where  the  descendants  of  a  deceased  heir  take  the  same 
share  or  right  in  the  estate  of  another  person  that  their  an- 
cestor would  have  taken  if  living.  Posthumous  children  are 
considered  as  living  at  the  death  of  their  pai-ents  and  partici- 
pate as  such.^  Inheritance  only  accrues  to  the  issue  of  lawful 
wedlock,  but  an  illegitimate  child  is  in  all  cases  considered  as 
tiie  heir  of  his  mother.*  The  descent  of  real  property  and  the 
order  of  succession  is  governed  by  special  statutes  known  as 
the  "rules  of  descent,"  and  which  vary  in  every  State. 

§  2.  Rules  of  Descent.  "The  English  law  of  descent" 
says  Chancellor  Kent,*  "is  governed  by  a  number  of  rules,  or 
canons  of  inheritance,  which  have  been  establislied  for  ages, 
and  have  regulated  the  transmission  of  the  estate  from  the  an- 
cestor to  the  heir,  in  so  clear  and  decided  a  manner,  as  to  pre- 
clude all  uncertainty  as  to  the  course  which  the  descent  is  to 
take.  But  in  the  United  States,  the  English  common  law  of 
descents,  in  its  most  essential  features,  has  been  universally 
rejected,  and  each  State  has  established  a  law  of  descent  for 
itself."  The  laws  of  the  individual  States,  while  preserving  a 
general  agreement  in  their  great  outlines,  jet  differ  mate- 
rially in  detail,  and  it  is  doubtful  if  any  two  of  them  are  ex- 
a3tly  alike,  a  circumstance  thit  has  induced  a  distinguisiied 
writer  on  this  subject  to  saj',  that  "this  nation  may  be  said  to 
have  no  general  law  of  descents,  which  probably  has  not  fallen 
to  the  lot  of  any  other  civilized  country."*  jSTo  atteuipt 
will  be  here  made  to  summarize  or  explain  the  regulations  of 
descent  in  the  various  States,  but  in  the  course  of  his  investi- 

» Walbridfre  r.   Day,  31    Til.   379;  7  Ga.  535. 
Chubb  V.  Johnson,  11  Tex.  469.  *  Miller  v.  Williams,  66   111.    92. 

^  Vansycle  v.  RichaiJson,    13   Til.  This  matter  is  statutory. 
171 ;  Wilson  v.  Wilson,  13  Barb.  252.  ^  4  Kent  Com.  *  374. 

*  4  Kent  Com.  412;  Morrow  r.  Scott,  ®  Reeve  ou  Descent,  pref. 


28  ABSTRACTS    OF    TITLE. 

gationi?,  the  examiner  will  frequently  have  to  refer  to  them 
fur  assistance  in  unraveling  knotty  pjint^  or  snarls  in  the 
tansjled  skein  of  title.  The  transmission  of  ])r()perty  by 
hereditary  descent,  from  the  parent  to  his  children,  is  the 
dictate  of  the  natural  affections,  and  forms  the  first  rule  of  in- 
heritance in  every  State,  varied  in  some  cases,  however,  by  the 
equal  participation  of  the  widow.  From  this  point  there  is 
no  uniformitj',  but,  as  a  rule,  the  lineal  kindred  take  in  prefer- 
ence to  the  coUateral.  If  the  descendants  all  stand  in  the 
same  decree  of  consanguinity  they  take  equally,  otherwise  by 
right  of  representation,  and  if  there  be  no  heirs,  the  property 
escheats  to  the  State.  The  degrees  of  kindred  are  ordinarily 
computed  in  the  United  States,  according  to  the  rules  of  the 
civil  law;  and  the  kindred  of  the  half-blood  inherit  equally 
with  those  of  the  whole  blood,  in  the  same  degree,  unless  the 
inheritance  be  ancestral,  in  which  case  those  who  are  not  of 
the  blood  of  such  ancestor  are  excluded.  The  last  mentioned 
rule  has  been  enacted  substantially  in  all  the  States,  but  is 
held  to  refer  to  the  immediate  and  not  to  the  remote  ancestor.* 
§  3.  Consanguinity.  The  relation  subsisting  among  all 
the  different  persons  descending  from  the  same  stock  or  com- 
mon ancestor,  is  called  consanguinity,  and  is  the  medium 
through  which,  in  the  descent  of  real  property,  the  several 
degrees  of  kindred  are  computed  and  deduced.  Consanguin- 
ity is  lineal  or  collateral;  the  former  being  the  relation  which 
exists  among  persons  where  one  is  descended  from  the  other 
as  between  father  and  son,  in  the  direct  line  of  descent;  the 
Litter  is  the  relation  subsisting  between  persons  descended 
from  the  same  common  ancestor,  but  not  from  each  other,  as 
between  brother  and  sister.  There  are  two  methods  of  com- 
puting the  degrees  of  consanguinity  known  respectively  as 
the  civil,  and  common  law  methods,  the  latter  being  also  the 
same  as  the  canon  law,  Tiie  rule  of  the  civil  law  is  generally 
used  in  this  country,  and  is  preferable  for  that  it  points  out 
the  actual  degree  of  kindred  in  all  cases.     This  mode  of  com- 

*  Buckingham  V.  Jacques,  37  Conn.       Appeal,  43  Wis.   167;  Ryan  r.  An- 
402;  Curren  v.  Taylor,  19  Ohio,  36;       drews,  21  Mich.  229. 
arder  v.  Collins,  2  Pet.  58;  Cramer's 


TITLE    BY    DESCENT.  29 

putation  begins  with  the  intestate,  and  ascends  from  him  to 
the  common  ancestor,  and  descends  from  such  ancestor  to  the 
next  heir,  reckoning  a  degree  for  each  person,  both  ascending 
and  descending,  and  the  degrees  thej  stand  from  each  other  is 
the  degree  in  which  they  stand  related.  According  to  this 
rule  of  computation  it  will  be  seen,  the  father  of  the  intestate 
stands  in  the  first  degree,  his  brother  in  the  second,  his  nephew 
in  the  third,  etc.  By  the  common  law  method  of  com- 
putation, different  relations  may  stand  in  the  same  degree,  and 
the  degrees  are  counted  the  same  whether  lineal  or  collateral. 
The  mode  of  the  common  and  canon  law  is  to  discover  the 
common  ancestor,  and  beginning  with  him  to  reckon  down- 
wards, and  the  degree  the  two  persons,  or  the  more  remote  of 
them,  is  distant  from  the  ancestor,  is  the  degree  of  kindred 
subsisting  between  theni.^  By  this  means  the  father  and 
brother  of  the  intestate,  or  person  proposed,  stand  in  the  same 
degree.  By  the  civil  law  the  father  stands  in  the  first  degree, 
the  brother  in  the  second.  So  by  the  common  law  the  first 
cousin  stands  in  the  second  degree;  by  the  civil  law  he  would 
stand  in  the  fourth.  The  line  of  ancestry  is  classed  as 
ascending  or  descending,  taking  the  person  proposed  as  the 
nnit,  and  is  further  classified  as  paternal  or  maternal,  accord- 
ing as  the  examination  may  lead  through  the  father  or  the 
mother.  In  England,  a  fair  ability  to  trace  genealogy  is  an 
indispensable  requisite  of  the  examiner,  as,  owing  to  the  non- 
probate  of  real  estate  wills  until  very  recent  years,  a  pedigree 
always  accompanied  an  abstract  showing  a  descent.  The 
matter  is  of  much  less  importance  in  the  United  States.  As 
an  illustration  of  the  subject  nnder  discussion,  a  diagram  of 
the  degrees  of  consanguinity,  according  to  the  civil  law,  is 
given  on  the  succeeding  page. 

'  1  Bou.  Law  Diet.  327;  2  Black.  Com.  202. 


30  ABSTRACTS   OF   TITLE. 

DEGREES    OF    CONSANGUINITY    ACCORDING    TO    THE    CIVIL   LAW. 


IV. 

Wt.Gt.Qrand- 
fat/ier. 


II. 
Grand  lather. 


III. 

V. 

Orrat 

Great- 

Grand/ather. 

grandunde 

IV. 

Great-uncle. 


I. 

IIL 

V. 

Father. 

Uncle. 

Great-uncle's 
Son. 

0. 

IL 

IV. 

VI. 

Intestate. 

Brother. 

C'ousin-ger- 
711  an. 

2d  Cousin 

I. 

Son. 


III. 
KepheiD. 


V. 

ht  Coil  sin's 

S07l. 


II. 
Grandson. 


IV. 

Xephew's 
Son. 


III. 
Great- 
grandson. 


TITLE    BY    DESCENT.  31 

§  4.  Affinity.  Tlie  relationship  or  connection  arising  in 
conseqnence  of  marriage,  which  exists  between  each  of  tlie 
married  persons  and  their  kindred,  is  termed  affinity,  and  is 
distinguished  from  consanguinity  wliich  is  used  to  denote  tlie 
ties  of  blood/  At  common  law  the  relationship  of  affinity  is  not 
sufficient  to  obtain  legal  succession  or  inheritance,  but  by  stat- 
ute the  surviving  husband  or  wife  has  been  endoAved  with  in- 
heritable qualities  and  may  take  as  heirs  of  each  other  accord- 
ing to  the  prescribed  rules  of  descent,  and  in  the  sense  that  an 
heir  at  law  is  simply  one  who  succeeds  to  the  estate  of  a  de- 
ceased person,  the  wife  is  an  heir  of  her  deceased  husband.^ 

§  5.  Adoption.  Adoption  is  a  juridical  act  creating  be- 
tween two  persons  certain  relations,  purely  civil,  of  paternity 
and  filiation.^  The  legal  ad()]:>tion  by  one  person  of  the  off- 
spring of  another,  giving  him  the  status  of  a  child  and  heir  of 
the  parent  by  adoption,  was  unknown  to  the  common  law, 
although  long  recognized  by  the  civil,  and  is  of  comparative 
recent  date  in  the  United  States.  The  act  of  adoption  is  the 
creation  of  an  artificial  relation,  made  in  conformity  with 
and  regulated  by  positive  statute  and  in  the  light  of  which 
the  new  rights  and  obligations  thus  derived,  are  to  be  solely 
construed.*  There  is  a  lack  of  uniformity  in  the  statutes  en- 
acted by  the  States,  but  which  in  the  main  agree  in  conferring 
on  the  person  so  adopted  the  rights  of  inheritance  and  suc- 
cession, and  other  legal  consequences  and  incidents  of  the  nat- 
ural relation  of  parent  and  child,  the  same  as  if  such  child  had 
been  born  in  lawful  wedlock  of  such  parent  by  adoption,  but, 
as  a  rule,  restrict  such  child  from  taking  ])roperty  expressly 
limited  to  the  body  or  bodies  of  the  parents  by  adoption,  and 
in  some  instances  from  taking  from  the  lineal  or  collateral 
kindred  of  the  parents  by  right  of  representation.  The  right 
of  inheritance  thus  secured  is  restricted  further  to  the  adopted 
parent  and  precludes  an  inheritance  from  the  actual  children 
of  such  adopted  parent,^  while  the  right  of  inheritance  by  the 

I  1  Bou.  Law  Diet.  97.  26;  Long  v.  Hewitt,    44  Iowa,  363; 

^  McKinney    v.    Stewart,  5   Knn.  Tyler  v.  Reynolds,  53  Iowa,  146. 

384;   SteeU.  Kurtz,  28  Ohio  St.  19'J.  ^  Barnhizcl    v.    Ferrcll,    47    Tnd. 

» 1  Bou.  Law  Diet.  90.  335;  Keegan   v.  Geraghly,  101   lU. 

*Keegan    v.    Geraghty,    101     111  26. 


32  ABSTRACTS    OF    TITLE. 

adoptive  parents  from  the  child  is  confined  to  such  propert)'- 
as  he  had  received  thron^^h  them,  and,  as  a  rnle,  they  are  ex- 
pressly prohibited  from  inheriting  any  property  which  the 
child  received  from  his  own  kindred  by  blood/  As  against 
the  adopted  child,  the  statnte  shonld  be  strictly  construed, 
beins:  in  derogation  of  the  general  law  of  inheritance,  which 
is  founded  on  natural  relationship,  and  is  a  rule  of  succession 
according  to  nature,  which  has  prevailed  from  time  immemo- 
rial. It  will  thus  be  seen  how  important  a  succession  through 
adoption  may  become  in  the  determination  of  land  titles,  and 
the  strictness  necessary  on  the  part  of  examiner  and  counsel 
in  the  investigation  of  questions  of  this  nature.  AVhere  title 
is  claimed  through  a  descent  by  adoption,  a  general  summary 
of  the  proceedings  creating  the  relation  should  ap])ear  and 
the  full  and  perfect  title  of  the  adoptive  heir  should  be  dedu^ 
cible  of  record  and  in  strict  conformity  to  the  statute.  The 
rights  of  inheritance  acquired  by  an  adoj)ted  child  under  the 
laws  of  a  particular  State  are  recognized  and  upheld  in  every 
other  State,  so  far  as  they  are  not  inconsistent  with  its  own 
laws  and  polisy,^  but  in  the  absence  of  statutory  directions, 
the  general  rules  of  descent  must  govern  as  in  other  cases.^ 

§  6.  Proof  of  Heirship.  Tliough  the  title  vests  in  the  heir 
by  operation  of  law  immediateh^  on  the  death  of  the  ances- 
tor, yet  purchasers  desire,  and  should  liave,  affirmative  evi- 
dence that  the  person  asserting  same  is  justified  in  so  doing, 
and  this  is  furnished  by  the  proceedings  of  the  probate  court. 
In  all  abstracts  the  interval  of  title  between  the  deed  by  which 
the  decedent  became  seized,  and  that  which  purports  to  be  a 
conveyance  by  the  heirs,  should  be  filled  by  a  summary  or 
abridgment  of  the  proceedings  in  probate,  showing  the  death 
of  the  intestate,  proof  of  heirship  by  those  asserting  title,  and 
a  satisfactory  settlement  of  the  estate,  for  until  all  this  has 
been  accomplished  the  title  of  the  heirs  is  liable  to  be  defeat- 
ed by  a  sale  by  the  administrator,  as  will  also  the  title  of  one 

1  Kee^an  v.  Geraghty,  101  111.  26.  » Rogg  ^._  ^los^.  129  Mass.  243. 

See  also,  Reinders  v.  Kappehuann,  ^  Reinders  v.  Kappelma.un,  CS  Mo. 

68  Mo.  482.  482. 


TITLE    BY   DESCENT.  66 

purchasing  from  them.*  This  is  a  necessary  result  of  the  rule 
of  law,  that  the  intestate's  property  is  primarily  holden  for 
the  paj'ment  of  his  debts,  and  may  be  sold  by  his  adminis- 
trator for  that  purpose.  Such  a  sale  necessarily  defeats  all 
testamentary  titles. 

§  7.  Proof  of  Death.  The  recitals  of  the  jurisdictional 
facts,  necessary  to  confer  jurisdiction,  in  the  decrees  and  judg- 
ments of  courts  of  exclusive  though  of  limited  jurisdiction, 
are  prima Jhcie  evidence  of  the  facts  recited.  Upon  tliis  prin- 
ciple it  has  been  repeatedly  declared  that  the  grant  of  letters 
testamentar}^  is,  in  general,  jprima  facie  evidence  of  the  death 
of  the  testator  or  intestate,^  and  in  support  of  titles  claimed 
by  descent  is  of  the  highest  character  of  evidence  of  title  in 
the  heirs. 

§  8.  Conveyances  by  Heirs.  Few  titles  are  to  be  accepted 
with  greater  caution,  than  those  asserted,  and  purported  to  be 
conveyed  by  persons  claiming  to  be  the  heirs  at  law  of  the 
person  last  seized,  in  the  absence  of  full  compliance  with  pre- 
scribed reorulations  concernina'  the  descent  and  distribution 
of  intestate  estates.  Too  frequently  from  various  motives,  no 
probate  is  ever  had,  and  the  children  of  the  decedent  unite  to 
convey  their  interests  describing  themselves  in  such  convey- 
ance as  ''  the  cliildren  and  heirs  at  law  "  of  such  decedent.  In 
England,  a  pedigree  would  accompany  a  conveyance  of  this 
character,  fixing,  by  reference  to  the  rules  of  descent,  the  nat- 
ure and  extent  of  the  interest  owned  by  each  heir.  In  the 
United  States,  the  paucity  of  family  records  and  the  method 
of  compiling  same,  would  render  a  pedigree  of  little  value, 
even  were  they  in  use,  and  the  examining  counsel,  if  doubts 
arise,  usually  resorts  to  the  more  doul)tful  alternative  of  an 
affidavit  to  prove  the  fact  of  heirship  and  bolster  up  the  title, 
the  affidavit  in  a  majority  of  instances  being  entitled  to  less 
credence  than  the  deed  it  supplements.  A  title  resting  on  no 
better  foundation  than  a  deed  of  this  character,  unless  re-en- 

"Hill  V  Treat,  67  Me.  501.  307;  Welch  v.  R.  R.  Co.,  53  N.  Y. 

2  Comstock  y.   Crawford.  3  Wall.      610;   Jeffers  v.  Radcliff,    10   N.  H. 

3'J6;    Belden  v.  Meeker,  47  N.  Y.      242. 
3 


3i  ABSTRACTS    OF    TITLE. 

forced  by  tlie  statute  of  limitations,  is  entitled  to  little  con- 
sideration, and  is  liable  to  be  defeated  at  any  time  before  tbe 
bar  of  the  statute  has  interposed.  Nor  can  the  purchaser 
know,  unless  personall}^  co<^nizant  of  the  facts,  that  all  the 
heirs  have  united  in  the  conveyance,  or  that  they  are  quali- 
fied to  convey;  or  that  a  widow's  dower  may  not  greatly  de- 
preciate the  value  of  the  property  thus  acquired.  In  this 
country  where  all  the  heirs  are  allowed  an  equal  representa- 
tion, partition  is  frequently  made  by  the  heirs  between  them- 
selves, without  the  interposition  of  a  court,  and  while  such 
partitions  are  regarded  as  valid,  yet  when  made  of  an  unprubat- 
ed  estate,  confusion  and  uncertainty  are  greatly  augmented,  and 
purchasers  should  decline  the  title  thus  derived  as  affoi-ding 
no  measure  of  safety.  Where  affidavits  are  resorted  to  to  prove 
heirship,  death  of  ancestor,  etc.,  they  should  be  well  authenti- 
cated as  well  as  positive  in  their  averments;  but  however  well 
framed  they  may  be,  they  afibrd  evidence  of  the  lowest  order 
only. 


CHAPTER  IV. 


TITLE  BY  PUKCIIASE. 


!  1. 

Nature  of  the  title. 

§  12. 

Riparian  titles. 

2. 

Deed. 

13. 

Dedication. 

3. 

Devise. 

14. 

Conlinnation, 

4. 

Public  grant. 

15. 

Occupancy. 

5. 

Estoppel. 

16. 

Abandonment. 

6. 

Technical  estoppel. 

17. 

Eminent  domain. 

7. 

Equitable  estoppel. 

18. 

Title    acquired    by 

8. 

Relation. 

domain. 

9. 

Prescription  and  lim 

itation. 

19. 

Escheat. 

10. 

Accretion  and  reliction. 

20. 

Confiscation. 

11. 

Avulsion. 

21. 

Forfeiture. 

eminent 


§  1.  Nature  of  the  Title.  Purchase  is  a  generic  term  which 
includes  every  mode  of  coming  to  an  estate,  except  hy  inher- 
itance/ though  in  its  more  limited  sense  it  is  applied  only  to 
the  acquisition  of  lands  b}^  way  of  bargain  and  sale  for  money 
or  other  consideration.^  Neither  law  writers  nor  courts  seem 
to  have  ventured  on  a  more  extended  definition,  if  indeed  one 
can  be  framed,  and  the  one  above  given  has  come  down  un- 
changed from  Blackstone,  who  in  turn  borrowed  it  from 
earlier  writers.  There  are  four  principal  methods  recognized 
of  acquiring  title  by  purchase,  to  wit:  by  deed,  devise,  pre- 
scription or  limitation  and  escheat.  To  these  may  be  added 
title  accruing  through  operations  of  nature;  as  accretion,  re- 
liction and  avulsion,  as  well  as  such  as  result  from  our  political 
and  civil  relations;  as  eminent  domain,  confiscation  and  for- 
feiture. Some  writers  still  farther  extend  the  list  by  the  ad- 
dition of  abandonment,  occupancy,  and  estoppel.  The  two 
former  of  these  are  not  known  in  the  United  States,  while  the 

'  Green  v.  Blanchar,  40  Cal.  194.  Dig.  tit.  30. 

2  2  Bou.    Law    Diet.    395;   Cruise 

(35) 


36  ABSTRACTS   OF   TITLE. 

latter  is  not,  strictly  speakin^r,  a  method    of  acquirini^  title  at 
all,  but  simply  a  recoo^nition  of  existing  titles. 

§  2.  Deed.  Title  by  deed  is  the  most  common  form  of 
purchase,  and  that  by  which  the  great  bulk  of  all  the  real  prop- 
erty in  the  country  is  directly  held.  The  term  deed  is  very 
comprehensive  in  its  signification,  and  denotes  not  only  all 
classes  of  instruments  for  the  conveyance  of  real  estate,  but 
any  instrument  in  writing  under  seal,  whether  relating  to  land 
or  any  other  matter.  In  its  popular  acceptation,  however,  it 
is  confined  to  conveyances  of  land,  or  estates  or  interests  there- 
in, and  is  still  further  restricted  in  its  meaning  to  absolute 
sales,  as  distinguished  from  mortgages,  indicating  conditional 
sales,  though  the  latter  are  as  essentially  deeds  as  the  former. 
In  its  broad  signification  it  is  the  highest  form  of  expression 
of  title  known  to  the  law. 

§  3.  Devise.  Next  to  deeds,  testamentary  conveyances 
from  the  most  common  vehicle  for  the  transfer  of  interests  or 
estates  in  land,  the  instrument  for  effecting  a  jyost  Tnortem 
transfer  being  called  a  will;  the  subject-matter  as  well  as 
the  title  by  which  same  is  acquired,  a  devise;  and  the  re- 
cipient of  the  testator^'s  bounty,  a  devisee.  A  will,  which  is  ef- 
fective as  a  conveyance,  only  after  the  maker's  death,  is  from 
its  own  nature  ambulatory  and  revocable  during  his  life,  and 
it  is  this  ambulatory  quality  which  forms  the  characteristic  of 
wills;  for  though  a  disposition  by  deed  may  postpone  the  pos- 
session or  enjoyment,  or  even  the  vesting  until  the  death  of 
the  disposing  party,  yet  the  postponement  in  such  case  is  pro- 
duced by  express  terms  and  does  result  from  the  nature  of 
the  instrument.*  Title  by  devise  is  of  the  highest  dignity, 
and  eflfective  for  all  purposes,  yet  may  be  defeated  in  the  same 
manner  as  a  title  by  descent,  when  in  the  course  of  adminis- 
tration it  becomes  necessary  to  sell  the  testator's  real  estate  fur 
the  payment  of  his  debts. 

§  4.  Public  Grant.  Though  technically  deeds,  public 
grants,  as  forming  the  foundation  of  title  are  usually  classed 
separately   from  them,  and  form   a  recognized  subdivision  in 

'  McDaniel  v.  Johns,  45  Miss.  632. 


TITLE    BY    PDRCIIASE.  37 

all  worlvs  treating  of  titles  or  estates.  The  original  divestnre 
of  title  b}--  the  government  may  be  effected  in  a  variety  of 
ways,  either  of  which  will  be  sufficient  for  the  purpose  in- 
tended. The  usual  method  is  by  patent  issued  in  conformity 
to  prescribed  legal  formalities,  though  government  may  make 
a  grant  bv  a  law,  as  effectually  as  by  a  patent  issued  in  pur- 
suance of  a  law;'  and  a  confirmation  by  law  of  a  claim  of 
title  in  public  lands  is  to  all  intents  and  purposes  a  grant  of 
such  lands.'^  The  original  grant,  whatever  may  be  its  form, 
is  the  first  link  in  the  chain  of  title  and  whenever  practicable 
should  constitute  the  initial  of  the  abstract,  as  the  basis  upon 
which  all  after-acquired  titles  and  interests  rest. 

§  5.  Estoppel.  Title  by  estopj)el,  as  defined  by  Washburn, 
"is  where  equitj'-,  and  in  some  cases  the  law,  in  order  to  ac- 
complish the  purposes  of  justice  which  can  not  be  otherwise 
reached,  draws  certain  conclusions  from  the  acts  of  one  party 
in  favor  of  another,  in  respect  to  the  ownership  of  laTids,  which  it 
does  not  allow  the  first  to  controvert  or  deny."^  Strictly  speak- 
ing, a  title  is  rather  presumed  than  acquired  by  estoppel,  which 
can  not  operate  to  divest  or  transfer  an  estate,  and  the  par- 
ties are  precluded  by  former  acts  from  asserting  anything  to 
the  detriment  of  the  title.  Estoppels  are  not  favored  in  law, 
for  the  object  of  the  administration  of  justice  is  to  discover 
and  apply  the  truth;  but  there  are'  cases  in  which  the  courts 
are  bound  to  say  to  a  litio-ant  that  he  has  to  his  own  advantacre, 
or  to  the  injury  of  his  adversar}^  asserted  that  which  is  false, 
and  that,  having  done  so,  he  must  be  forever  forbidden  to 
unfold  for  his  own  benefit  the  truth  of  the  matt<;r.*  Mu- 
tuality is  an  essential  ingredient  of  estoppels,  and  it  follows 
from  the  very  principle  on  which  the  whole  doctrine  rests, 
that  they  operate  neither  in  favor  of  nor  against  strangers,  but 
affect  only  the  parties,  and  their  privies  in  blood,  estate,  or  in 
law.  A  third  party  derives  no  advantage  from,  nor  can  he  be 
bound  by   an   estoppel,  and  this  rule  applies  equally  whether 

iHall  V.  Jarvis,  G5  Til.  P.02;  Strat-  5r4. 

her  V.  Lucas,  12  Pet.  411;  Mayo  r.  »  3  Wasb.  Real  Prop.  70  (4tli  Ed.). 

Libby,  12  Mass.  339.  *  Abbot    r.  Wilber,   22   La.  Ann. 

^  Challefoux  v.  Ducharme,  4  Wis.  3G3. 


3S  ABSTRACTS   OF   TITLE. 

the  estoppel  arises  by  record,  deed,  or  matter  in  pais?  Es- 
toppels are  classified,  according  to  their  nature,  as  technical, 
or  by  record  or  deed,  and  equitable,  or  in  pais.  Courts  at 
the  present  day  incline  to  restrict  the  doctrine  of  teclinical 
estoppel,  and  to  favor  and  extend  equitable  estoppel. '■* 

§  6.  Technical  Estoppel,  The  estoppel  arising  from  deeds 
and  records  is  that  which  directly  concerns  an  examiner  of 
titles,  and  is  really  the  only  question  of  this  nature  on  which  he 
can  be  called  to  pass.  Matters  in  pais  from  their  nature  are 
not  presented  to  him,  nor  are  they  eflective  in  questions  of  title 
until  presented  for  determination  to  some  competent  tribunal, 
when  they  become  matters  of  record  and  operative,  if  at  all, 
as  technical  estoppel.  Estoppel  by  record  is  based  upon  the 
rulings  and  determinations  of  the  courts,  and  proceedings  had 
therein,  which  are  considered  at  length  in  other  portions  of 
the  work.  Verdicts  and  judgments  are  conclusive  by  way  of 
estoppel,  only  as  to  facts  without  the  proof  or  admission  of 
which  they  could  not  have  been  rendered,^  or  of  matters  mate- 
rial to  the  decision  of  the  cause,  and  which  the  parties  might 
have  had  decided,  although  not  actually  litigated,*  but  not  as 
to  facts  not  essential  to,  although  consistent  with  the  general 
verdict  or  decree  entered  thereon.^  The  estoppel  of  a  judg- 
ment extends  only  to  the  question  directly  involved  in  the 
issue,  not  to  any  incidental  or  collateral  matters,  although  they 
may  have  arisen  and  been  passed  on,**  and  is  effective  only  as 
bel  ween  the  original  parties  thereto  or  their  privies.^  It  must 
equally  estop  both  parties  thereto,  or  it  can  not  be  set  up  by 
either,^  and  is  not  available  either  for  or  against  a  stranger." 
The  reversal  of  a  judgment  destroys  its  efficacy  as  an  estop- 
pel.^"    Estoppel  by  deed  arises  from  the  provisions  contained 

^Chope  V.  Lonnan,  20  Mich.  327;  ®  Lewis  Appeal,  67  Penn.  St.  lo3; 

Simpson  v.   Pearson,  31  Ind.  1 ;  Mc-  Dixon  v.  Menitt,  21  Minn.  196;  Prov- 

Donald  v.  Gregon%  41  Iowa,  513.  idence  r.  Adams,  11  R.  I.  190. 

2  State  V.  Pepper,  31  Ind.  76.  "^  McDonald  v.   Gregory,  41  Iowa, 

3  Burlen  v.  Shannon,  99  Mass.  200.  513. 

*  Lindsley  v.  Thompson,  1  Tenn.  ^  Stoddard  v.  Burton.  41  Iowa,  582. 
Ch.  272;  Buck  v.  Collins,  09  Me.  445.  « Mayo  v.  Wood.  50  Cal.  171. 

*  Burlen  v.  Shannon,  99  Mass.  200.         i"  Smith  v.  Frankfield,  77  N.  Y.  414. 


TITLE    BY    PURCHASE.  39 

in  coTi\'cyances  of  land,  either  by  a  recital,  admission,  cove- 
nant, or  otherwise,  whether  in  express  terms  or  by  necessary 
implication,  and  parties  £:;iving  and  receivinsj  same,  to^^ether 
with  their  privies,  are  estopj^ed  from  denying  the  operation  of 
the  deed  according  to  the  manifest  intent/  In  controversies 
concerning  the  title  to  real  osteite  the  qnestion  of  estoppel  most 
frequently  arises  in  construing  the  effect  of  covenants,  and  it 
is  a  general  rule,  that  where  a  person  conveys  land  with  a 
general  warranty,  he  having  no  title  at  the  time,  but  after- 
ward acquires  a  good  title  to  same,  such  acquisition  inures  to 
the  benelit  of  the  grantee,  because  the  grantor  is  estopped  to 
deny,  against  the  terms  of  his  own  warranty,  that  he  had  the 
title  in  question.^  But  this  effect  does  not  extend  to  an}'  oth- 
er covenants  than  that  of  warranty.  The  other  covenants  are 
personal  only.  Nor  does  the  rule  extend  to  covenants  by  a 
married  woman,  except  in  States  where  married  women  have 
been  expressly  enabled  by  statute  to  enter  into  covenants.' 
Although  a  grantor  can  not  set  up  a  hostile  title  existing  at  the 
time  of  his  conveyance,  because  he  is  estopped  by  his  cove- 
nants, yet  if  the  deed  be  a  mere  quitclaim,  without  covenants, 
and  purporting  to  convey  nothing  but  the  interest  of  the  grant- 
or in  the  premises,  whatever  that  interest  may  be,  without 
defining  the  character  of  the  interest,  or  affirming  that  he  has 
an  interest  in  the  premises,  he  is  not  debarred  from  subsequent- 
ly acquiring,  and  setting  np,  any  other  title,  whether  existing 
at  the  time  of  his  conveyance,  or  subsequently  created.*  It 
has  been  held,  in  a  late  case,  that  the  doctrine  of  covenants 
for  title  inuring,  on  principles  of  estoppel,  in  favor  of  a  sub- 
sequent grantee,  is  not  to  be  carried  so  far  as  to  charge  a  pur- 
chaser, or  his  attorney  examining  title  for  him,  with  construct- 
ive notice  of  deeds  recorded  before  the  vendor  has  any  record 

J  Taggart  v.   Risley,  4  Oreg.   235;  «  Wilson  t:  King,23  N.  J.  Eq.  ir.O. 

Tobey  v.   Taunton,  119  Mass.  404;  *  Bruce  v.  Luke,  9  Kan.  201;  Read 

Atlantic  Dock  Co.  v.  Leavitt,  54  N.  v.  Whitteniore,  60  Me.  479;  Sydnor 

Y.  35;  Foster  v.  Young,  35  Iowa,  27;  v.  Palmer,  29  Wis.  229;  Shumaker  r. 

ScofEn  V.  Grandstaff,  12  Kan.  467.  Johnson,  35  Tnd.  33;  Graham  t'.  Gra- 

2  Burtners  v.  Keran,  24Gratt.  (Va)  ham,  55  Ind.  23. 
43;  Wiesner  v.  Zaun,  39  Wis.  188. 


40  ABSTRACTS    OF    TITLE. 

title,  and  that  such  purchaser,  fiiKliri*^  a  good  title  of  record, 
may  rely  upon  it,  and  is  not  required  or  expected  to  look  fur- 
ther/ yet  such  decision  seems  to  be  founded  on  doubtful 
authority  and  is  opposed  to  the  great  bulk  of  American  cases 
on  this  subject.'^ 

§  7.  Equitable  Estoppel,  An  estoppel  in  pais  rests  upon 
the  principle  that  a  party  has  misled  another  to  his  prejudice, 
under  such  circumstances  that  it  would  be  a  fraud  for  him  to 
assert  what  may  be  the  truth.  Hence  to  raise  an  estoppel 
from  former  declarations  or  admissions  by  a  party  to  prevent 
him  from  setting  up  his  title  to  property,  the  facts  must 
show:  1.  That  when  making  the  statements  or  admission 
relied  upon,  he  M^as  apprised  of  the  true  state  of  his 
own  title(  2.  That  he  made  the  statement  or  admission 
with  the  express  intention  to  deceiv^e,  or  with  such  careless  or 
culjmble  negligence  as  to  amount  to  constructive  fraud.  3. 
That  the  other  party  had  neither  knowledge  of  the  true  state 
of  the  title  nor  convenient  means  of  acquiring  such  knowledge 
by  the  use  of  ordinary  diligence;  and,  4.  That  he  relied  di- 
rectly upon  such  statement  or  admission,  and  will  be  injured 
by  allowing  its  truth  to  be  disproved.^  It  will  be  seen  that 
the  important  and  primary  ground  of  estoppel  in  pais  is,  that 
it  would  be  a  fraud  in  a  party  to  assert  what  his  previous  con- 
duct had  denied,  when  on  the  faith  of  that  denial  others  have 
acted,*  but  no  man  can  set  up  another's  act  or  declaration  as 
the  ground  of  an  estoppel,  unless  he  has  himself  been  deceived 
by  it,^  and  a  party  can  never  be  estopped  by  an  act  that  is 
illegal  and  void.'     An  estoppel  {?i  p><^is,  unlike  that  by  deed, 

iDoodr.   Williams,    3  Mo.  App.  Dinsey    (Ohio),    302;     Halloran   v. 

278;  see  also    State   v.  Bradish,   14  Whitcomb,  43  Vt.  306;  Horn  r.  Cole, 

Mass.  296.  51  N.  H.  287;  Clark   v.   Coolid^e,   8 

2  Logan  V  Steel,  4  Mon.  433;  Mitch-  Kan.  189;  Mallony  v.  Horan,  49  N. 
ell  V.  Pettee,  2  W.  Va.  470;  Bates  v.  Y.  111. 

Norcross,  17  Pick.  14;  Clark  r.  Baker,  *  Rice  v.  Bunce,  49  Mo.  231. 

14Cal.  612;   DeWolf  t7.  Haydin,   24  ^  gjnipson  v.  Pearson,    31    Ind.  1; 

111.  525.  McKinzie  v.   Steele,  18  Ohio  St.  88; 

3  Martin  v.  Zellerbach,  38  Cat.  300;  Devries  v.  Haywood,  64  N.  C.  83. 
McCabe  v.  Raney,  32  Ind.  309;  Nu-  « Mattox  v.  Hightshue,  39  Ind.  95. 
gent  V.  Cijicinnati,  etc.,  R.  R.  Co.,  2 


TITLE    BY    PUECHASE.  41 

operates  only  on  existini^j  rights.  Thus  a  person  who,  while 
haviniJ^  no  title  in  himself,  induces  another  to  purchase  land 
at  a  sheriff's  sale,  bj  his  representations  that  a  good  title  will 
pass  by  the  sale,  is  not  precluded  from  setting  up  afterward 
an  adverse  title  in  himself.'  At  law,  the  doctrine  of  equitable 
estoppel  can  not  be  applied  to  work  a  transfer  of  property, 
which  by  the  statute  of  frauds,  can  be  efi'ected  only  by  a  writ- 
ing, and  the  legal  title  must  always  prevail,^  yet,  although 
a  party  can  not  divest  himself  of  such  an  estate  by  parol,  he 
may  without  writing,  so  conduct  himself  with  reference  to  it 
that  he  will  be  estopped  afterward  to  assert  a  claim  thereto; 
and  this  principle  is  applied  without  reference  to  the  statute 
of  frauds.^  The  doctrine  of  estoppel  does  not  ordinarily  apply 
to  a  State  as  it  does  to  individuals.  The  sovereign  power  is 
but  a  trustee  for  the  people.  It  acts  by  its  agents  and  the 
people  should  not  be  bound  by  any  statement  of  facts  made 
by  those  agents.  For  their  benefit  the  truth  may  always  be 
shown,  notwithstanding  an}'  former  statement  to  the  contrary.* 
This  principle  rests,  in  part  at  least,  upon  the  general  doc- 
trine that  the  State  can  not  part  with  her  title  to  land  except 
by  grant  or  other  record  evidence.^  An  apparent  exception 
lias  been  said  to  arise  in  those  cases  in  which  the  act  sought 
to  be  made  binding  was  done  in  her  sovereign  capacity 
by  legislative  enactment  or  resolution,®  but  this  is  not  so 
much  an  exception  to  the  general  doctrine  of  estoppel,  by  ac- 
quiescence in  an  unauthorized  act  of  a  mere  subordinate  agent, 
as  it  is  an  original  binding  afiirmative  act  on  the  part  of  the 
State  herself,  made  in  the  most  solemn  manner  in  which  she 
can  give  expression  to  the  sovereign  will.' 

§  8.  Relation.     The  doctrine  of  relation  is  applied   in  con- 
veyances of  land,  to  equitable  titles  which  subsequently  ma- 

» Donaldson  v.  Hibner,  55  Mo.  492.  v.  U.  S.,  5  Mason  C.  C.  425. 

2  Kelly  r'.  Hendricks,  57  Ala.    193;  » Saunders  v.   Hart,  14  Ri-portor, 
Hayes  v.  Livingstone,  34  Mich.  384.  540. 

3  R.  R.  Co.  V.  Ragsdale,   64  Miss.  »  Alexander  i'.  State,  56  Ga.  486; 
200.  Enfield  r.  Permit,  5  N.  H.  285;  Com- 

*  Fannin  Co.  v.  Riddle,  51  Tex.  360;      mon  wealth  v.  Andre,  3  Pi(  k.  224. 
Parish  v.  Coon,  40  Cal.  50;  Johnson         '  Saunders  r.  Hart,  14  Reporter,  540. 


42  ABSTRACTS    OF    TITLE. 

tnre,  eitlier  by  operation  of  law  or  act  of  tlic  parties,  into  legal 
titles,  and  where  several  acts  concur  to  make  a  conveyance, 
estate  or  other  thincr,  the  original  act  will  be  prefcn-ed,  and  to 
this  the  other  acts  will  have  relation.  The  Hction  of  relation  is, 
that  the  intermediate  honafide  alienee  of  the  incipient  inter- 
est may  claim  that  the  grant  inures  to  his  benefit  by  an  ex  post 
facto  operation.  In  this  way  he  receives  the  same  protection 
at  law  that  a  court  of  equity  could  afford  him.  Thus,  the  as- 
signee of  a  certificate  of  the  purchase  of  school  land,  the  pur- 
cliase  money  being  all  paid,  conveyed  the  premises  by  quit- 
claim deed;  a  few  days  afterward  he  received  the  patent,  and 
it  was  held  that  the  legal  title  passed  to  his  grantee.  So,  where 
a  deed  is  made  in  pursuance  of  a  recorded  land  contract,  it  re- 
"ates  back  to  the  date  of  the  contract,  and  conveys  the  title 
as  it  stood  at  the  time  the  contract  was  recorded.^  The  same 
doctrine  also  applies  to  grants  of  unlocated  land,  the  subse- 
quent location  operating  by  relation  to  the  original  grant.'^ 
The  doctrine  of  relation  is  a  fiction  of  law  adopted  b}^  the  courts 
solel}"  for  the  purpose  of  justice,  and,  where  several  proceed- 
ings are  required  to  perfect  a  convej'ance  of  land,  it  is  only 
applied  for  the  security  and  protection  of  persons  who  stand  in 
some  privity  with  tlie  party  that  initiated  the  proceedings  and 
acquired  the  equitable  claim  or  right  to  the  title.  It  does  not 
affect  strangers  not  connecting  themselves  with  the  equitable 
claim  or  right  by  any  valid  transfer  from  the  original  or  any 
subsequent  iiolder.* 

§  9.  Prescription  and  Limitation.  Prescription  is  that 
title  which  arises  from  a  long  and  continued  possession  of 
property,  and  is  founded  upon  the  presumption,  that  the  party 
in  possession  would  not  have  been  allowed  bj  other  claimants 
to  hold  same,  without  a  just  and  paramount  title.  Prescrip- 
tion, in  the  ancient  sense  of  the  word,  rests  upon  the  sup- 
position of  a  grant,  and  the  use  or  possession  on  whicli  such 
title  is  founded   must   be   uninterrupted,  and  adv'erse,  or  of  a 

1  Welch  V.   Button,    79   111.  465;       444. 
Snapp  V.  Pierce,  24  111.  1-j6.  ^  Gibson  r.  Chcutean,  13  Wall.  92. 

^  Dequindre  v.   Williams,  31  Ind. 


TITLE    BY    PCKCIIASE.  43 

nature  to  Iiulicate  that  it  is  claimed  as  a  right,  and  not  tlie 
effect  of  indulgence,  or  of  any  compact  short  of  a  grant.'  Pre- 
sumptions of  this  nature  are  adopted,  from  the  general  in- 
firmity of  Imman  nature,  the  difficulty  of  preserving  muni- 
ments of  title,  and  the  public  policy  of  supporting  long  and 
uninterrupted  ])OSsessions,  They  are  founded  upon  the  con-  • 
sideration,  tliat  the  facts  are  such  as  could  not,  according  to 
the  ordinary  course  of  human  affairs,  occur,  unless  there  was 
a  transmutation  of  title  to,  or  an  admission  of  an  existiii"- 
adverse  title  in,  the  party  in  possession.^  The  period  of  legal 
memory  or  prescription  does  not,  at  common  law,  extend 
farther  back  than  sixty  years,^  while  forty  years  is  usually  a 
sufficient  length  of  time  to  establish  a  prescriptive  title,*  and 
in  general,  it  is  the  policy  of  the  courts  to  limit  the  pre- 
sumption of  grants  to  periods  analogous  to  those  of  the  statute 
of  limitations,  in  cases  where  the  statute  itself  does  not  apply. ^ 
A  title  founded  upon  prescription  or  limitation,  accomjianied 
by  an  adverse  user  or  enjoyment,  is  recognized  as  valid  and 
substantial,  as  against  all  save  the  sovereign  power,"  and  in  the 
older  States  of  the  Union,  where  it  is  difficult  to  trace  title  to 
its  source,  property  is  freely  conveyed  on  the  assurance 
furnished  by  time  and  the  statute  of  limitations.  Twenty 
years  is  the  period  ordinarily  fixed  bj^  the  statute  in  which  to 
perfect  an  adverse  possession  of  lands,  while  in  case  the 
occupant  claims  a  title,  exclusive  of  any  other  right,  founding 
such  claim  upon  some  written  instrument,  judgment  or 
decree,  ten  years  is  usually  sufficient,  and  in  some  States  even 
a  shorter  period.'' 

§  lO.  Accretion  and  Reliction.  Accretion  is  the  increase 
of  real  estate,  caused  by  the  addition  made  by  the  washing  of 
the  sea,  a  navigable  river,  or  other  stream  to  which  the  land 
is  contiguous,  whenever  the  increase  is  so  gradual  that  it  can 

1  Gayetty  v.  Betliune,  14  Mass.  49;  »  Hunt  v.  Hunt,  3  Met.  175.            i 

Odiorne  v.  Wade,  5  Pick.  421.  «  Gardiner  v.  Miller,  47  Cal.  570. 

*  Gayetty  v.  Bethnne,  14  Mass.  49.  ''  Consult    local    statutes   for    the 
^  Coolidge  w.  Learned,  8  Pick.  504;  periods  of  limitation,  and  the  char- 

Odiorne  v.  Wade,  5  Pick.  421.  acter  of  the  occupancy  necessary  to 

*  Melvin  v.  Whiting,  10  Pick.  295.       perfect  title. 


44  ABSTRACTS    OF    TITLE. 

not  be  perceived  at  an_y  one  moment  of  time.'  The  increase 
or  deposit  obtained  by  accretion  is  technically  called  allnvion, 
and  whether  produced  by  natural  or  artificial  causes  inures  to 
the  beneiit  of  the  adjacent  territory.^  Upon  all  rivers  not 
navigable  by  common  law  the  owner  of  the  land  adjoinini^  is 
prima  facie  owner  of  the  soil  to  the  central  line  or  thread  of 
the  stream  subject  to  the  public  easement  of  navigation.' 
The  presumption  will  prevail  in  all  cases  in  favor  of  the 
riparian  proprietor,  unless  controlled  by  some  express  words 
of  description  which  exclude  the  bed  of  the  river,  and  in  all 
cases  where  the  river  itself  is  used  as  a  boundary,  tlie  law  will 
expound  the  grant  as  extending  to  the  center  or  thread.*  Up- 
on navigable  lakes  and  rivers,  where  the  public  easement  is 
not  interrupted,  the  question  of  navigability  (as  at  common 
law)  does  not  arise,  and  the  riparian  proprietor  will  still  be 
entitled  to  all  accretions  without  regard  to  navigability.*  In 
applying  the  principle,  that  land  formed  by  alluvion  is  the 
property  of  the  adjoining  owner,  it  is  quite  immaterial,  on 
non-navigable  streams,  whether  this  alluvion  forms  at  or 
ao-ainst  the  shore  so  as  to  cause  an  extension  of  the  bank,  or  in 
the  bed  of  the  stream  and  becomes  an  island,*  and  where  an 
island  is  so  formed  in  the  bed  as  to  divide  the  chaTinel  and  form 
partly  on  each  side  of  the  thread,  the  opposite  sides  belong  to 
the  different  proprietors  and  the  island  should  be  divided  ac- 
cording to  the  original  thread.  The  increase  on  streams, 
rivers  and  water  fronts  may  be  divided  according  to  the  fol- 
lowing rule:  Measure  the  whole  extent  of  the  ancient  line  on 
the  river  and  ascertain  how  many  feet,  rods,  etc.,  each  propri- 
etor owned  on  the  line;  divide  the  newly  formed  line  into 
equal  parts  and  appropriate  to  each  proprietor  as  many  por- 
tions of  this  new  river  line  as  he  owned  feet  on  the  old.     Then 


iLovingstonr.  St.  Clair  Co.,  64111.  *Braxon  r.  Bressler,  64   111.488; 

56.  Ross  V.  Faust,  54  Ind.  471. 

2  St.  Clair  Co.  r.  Lovingston,   23  *Lovingston  r.  St.  ClairCo.,  64  111. 
AVall.  46;  Lamniers  v.  Nissen,  4  Neb.  56. 

245;  Banks  v.  Og-den,  2  Wall.  57.  « Deerfield  v.  Arms,  17  Tick.  41; 

3  Hubbard  v.  Bell,  54  111.  110;  01-  Granger  v.  Avery,  64  Me.  292. 
son  V.  Merrill,  42  Wis.  203. 


TITLE    BY    rUKCHASE.  45 

to  complete  the  division,  lines  are  to  be  drawn  from  the  parts 
at  wliicli  tlie  proprietors  respectively  bounded  on  the  old,  to 
the  points  thus  determined  as  the  new  points  of  division  on 
the  newly  formed  shore.  The  new  lines,  thus  formed,  it  is 
obvious,  will  be  either  parallel,  divergent  or  convergent,  ac- 
cording as  the  new  shore  line  of  the  river  equals,  exceeds  or 
falls  short  of  the  old/  This  mode  of  distribution  secures  to 
each  riparian  proprietor  the  benefit  of  continuing  to  hold  to 
the  river  shore  whatever  changes  may  take  place  in  the  con- 
dition of  the  river  or  the  accretion.  The  rule  will  require 
modification  under  particular  circumstances,  as  for  instance, 
if  the  ancient  margin  has  deep  indentations  or  sharp  y^rojec- 
tions,  the  general  available  line  on  the  river  ought  to  be  taken, 
and  not  the  actual  length  of  the  margin  as  thus  elongated  by 
the  indentations  or  projections.  A  more  familiar  rule,  and 
one  of  general  application  in  the  West,  is  to  extend  the 
original  water  frontage  of  the  respective  parcels  of  lani,  as 
nearly  as  practicable  at  right  angles  with  the  original  shore 
line,  or  with  the  course  of  the  river  to  the  thread  of  the 
stream.^  The  usual  incidents  of  title  attend  property  acquired 
by  accretion.^  The  right  to  alluvial  formation  is  a  vested  one, 
and  is  inherent  in  the  property  itself  It  forms  an  essential 
attribute  of  it,  resulting  from  natural  lav/  in  consequence  of 
the  loc.'il  situation  of  the  land.*  Eeliction  differs  from  accre- 
tion only  in  that  it  results  from  the  gradual  subsidence  of 
waters,  the  effect  being  the  same.  Accretion  or  reliction  fol- 
lows the  title  of  the  land  contiguous  to  the  alluvion,  but  will 
appear  of  record  only  when  surveys  or  divisions  have  been 
made  in  the  manner  above  indicated. 

§  11.  Avulsion.  Avulsion  is  the  reverse  of  accretion, 
being  the  sudden  retnoval  or  deposit  of  land  by  the  per- 
ceptible action  of  water,'^   and   the  term  is  also  applied  to  the 

iDeerfield  v.  Anns,   17  Tick.  41;  "Gale  p.  Kinzio,  80111.1^2. 

Batchekler  v.   Keniston,  51    N.    H.  ••Kennedy  v.  Municipality  No.  2, 

496;  Thornton  v.  Grant,  10  R.  I.  477;  10  La.  Ann.  54. 

Jones  V.  Johnson.  18  How.  150.  '"  1  Bou.  Law  Diet.  177;  2  Wash. 

2  Miller  v.  Hepburn,  8  Bush  (.Ky.),  Real.  Prop.  452. 
326. 


46  ABSTRACTS    OF    TITLE. 

derelict  left  by  the  sudden  subsidence  of  water  on  the  sea- 
shore or  on  uavigable  rivers.  The  antliorities  are  not  al- 
together harmonious,  but  the  majority,  following  the  common 
law,  phice  the  title  to  such  derelict  in  the  sovereign.'  In  the 
case  of  inland  navigable  streams,  the  title  depends  upon 
local  laws,  some  States  claiming  the  title  of  the  bed  of  the 
stream,  while  otliers  concede  it  to  the  riparian  proprietor, 
subject  only  to  the  public  easement  of  navigation. 

§  12.  Riparian  Titles.  The  law  on  the  subject  of  owner- 
shi])s  of  land  bordering  on  streams  and  water-ways  is  not 
uniform  in  the  different  States.  The  common  law  distinction 
of  navigable  and  non-navigable  rivers  is  not  applicable  in  the 
interior,  nor  decisions  based  upon  it,  and  a  majority  of  the 
States  concede  ownership  in  the  individual,  of  land  within 
their  respective  borders  covered  by  water,  even  though  pos- 
sessing the  element  of  navigability.  The  doctrine  as  laid  down 
in  the  federal  courts,  and  in  some  of  the  States,  is  as  follows: 
"  JVTeander  lines  are  run  in  surveying  fractional  portions  of 
the  public  lands  bordering  on  navigable  rivers,  not  as  bound- 
aries of  the  tract,  but  for  tiie  purpose  of  defining  the  sinuosities 
of  the  banks  of  the  stream,  and  as  the  means  of  ascertaining 
the  quantity  of  land  in  the  fraction  subject  to  sale,  and 
which  is  to  be  paid  for  by  the  purchaser.  In  preparing  the 
official  plat  from  the  field  notes,  the  meander  line  is  repre- 
sented as  the  border  line  of  the  stream,  and  shows  to  a 
demonstration  that  the  water-course  as  actually  run  on  the 
land  is  the  boundary.  Proprietors  bordering  on  streams  not 
navigable,  unless  restricted  by  the  terms  of  the  grant,  hold  to 
the  center  of  the  stream;  but  the  better  opinion  is,  that  pro- 
prietors of  hinds  bordering  upon  navigable  rivers,  under  titles 
derived  fi'mn  the  United  States,  hold  only  to  the  stream,  as 
the  express  ]irovision  is  that  all  such  rivers  shall  be  deemed 
to  be  und  remain  public  highways.  *****  Rivers 
are  not  regarded  as  navigable,  in  the  common  law  sense, 
unless  the  waters  are  affected  by  the  ebb  and  flow  of  the 
tide,  but  it  is  quite  clear  that  Congress  did  not  employ  the 
words    navigable  and   not  navigable  in  that  sense,  as  usually 

»  2  Black.  Com.  262;  Dikes  e.  Miller,  24  Tex.  417. 


TITLE   BY    PUKCriASE.  47 

understood  in  legal  decisions.  On  the  contrary,  it  is  obvious 
tliat  tlie  words  were  employed  without  respect  to  the  ebb  and 
flow  of  the  tide,  as  they  were  applied  to  territory  situated  far 
above  tide  waters,  and  in  which  there  were  no  salt  water 
streams.  Viewed  in  the  lio:ht  of  these  considerations,  the 
court  dues  not  hesitate  to  decide  that  Congress,  in  making  a 
distinction  between  streams  navigable  and  those  not  navi- 
gable, intended  to  provide  that  the  common  law  rules  of  ripa- 
rian ownership  should  apply  to  lands  bordering  on  the  latter, 
but  that  the  title  to  land  bordering  on  navigable  streams 
should  stop  at  the  stream,  and  that  all  such  streams  should  be 
deemed  to  be  and  remain  public  highways."  '  !Nor  will  the 
common  law  apply  to  our  great  fresh  water  lakes,  for  here 
there  is  neither  flow  of  the  tide  nor  thread  of  tlie  stream,  and 
local  law  appears  to  have  assigned  the  shores  down  to  ordinary 
low  water  mark  as  the  boundary  of  the  riparian  proprietor.^ 
§  13.  Dedication.  A  dedication  is  an  appi-opriation  of 
land  to  public  use;*  the  public  and  not  merelv  a  public  cor- 
poration must  be  the  chief  beneficiary,*  and  properly  speak- 
ing thei'e  can  be  no  dedication  to  jirivate  nses.^  Dedication 
is  express,  as  when  made  by  deed  or  other  unequivocal  act  or 
declaration;  or,  implied,  or  presumed  from  an  acquiescence 
in  the  public  use.®  The  law  requires  no  particular  form  or 
solemnity  to  constitute  a  valid  dedication,  the  intention  of  the 
owner  being  the  vital  principle,  and  this  may  be  evidenced  by 
the  owner's  acts  or  declarations  and  the  circumstances  under 
which  the  user  has  been  permitted.^  The  question  of  dedica- 
tion arises  most  frequently,  in  the  examination  of  titles,  in 
the  construction  of  plats  and  subdivisions,  and  must  be  deter- 
mined by  reference  to  local  law,  as  the  common  law  dedication 

'  R.  R.  Co.  V.  Schurmeir,  7  Wall.  »  M.  E.  Church  r.  Hoboken,  33  N. 

272.    See  also  Forsyth  v.  Small,  7  J.  L.  13. 

Biss.  201.  6  Robertson  v.  Wellsville,  1  Bond, 

2  3  Kent.  Com.   429;    Wheeler  v.  81. 

Spinola,  54  N.  Y.  377;  Canal  Com-  ^  Wood  v.  Hurd,  34  N.  J.  L.  87; 

raissioners  v.  The  People,  5  Wend.  Buchanan  v.  Curtis,  25  Wis.  99;  Mc- 

423.  Intyre  v.  Storey,  80  111.  127;  Shear  v. 

M  Bon.  Law  Diet.  443.  Stothart,  29  La.  Ann.  G30. 


*  '! 


Todd  c.  R.  R.  Co.,  19  Ohio  St.  514. 


48  ABSTKACTS    OF    TITLE. 

has  in  many  of  the  States  been  supplemented  by  statute  which 
vests  the  legal  title  to  the  dedicated  tract  in  the  niunici})alit3'/ 
At  comnion  law,  when  tiie  right  of  the  public  to  the  use  of 
land  rests  upon  no  other  foundation  than  a  dedication  to  pub- 
lic uses,  the  easement  vests  in  the  public,  while  the  fee  re- 
mains in  the  original  owner,  and  may  be  conv^eyed  by  him  to 
third  persons,  but  the  right  of  the  public  to  the  use  is  para- 
mount to  the  title  of  the  owner  of  the  fee,  and  does  not  re- 
quire the  fee  for  its  protection.^ 

§  14.  Confirmation.  Confirmation  is  that  peculiar  species 
of  conveyance,  whereby  an  estate  which  was  voidable  or  in- 
choate is  made  valid  and  certain,  or  where  a  particular  interest 
is  increased.  Though  deeds  of  confirmation  are  in  use  be- 
tween individuals,  the  term  is  usually  applied  to  those  con- 
firmatory acts  of  Government  whereby  inchoate  or  uncertain 
rights  derived  from  foreign  powers,  are  ratified  and  approved, 
and  relates  to  the  origin  of  title.  A  confirmation  can  not 
strengthen  a  void  estate,  but  only  one  that  is  voidable,  and  is 
conclusive  only  as  between  the  Government  and  the  confirmee.^ 
Confirmation,  as  a  basis  of  title,  relates  mainly  to  imperfect 
grants  of  the  French,  Spanish  or  Mexican  Governments,  made 
prior  to  the  annexation  of  the  territor}"-  to  the  United  States, 
and  may  consist  of  the  judgment  or  determination  of  a  board 
of  commissioners  organized  for  tliat  purpose,  the  federal 
courts,  or  special  act  of  Congress.  Though  it  has  been  held 
that  a  confirmation  by  law  of  a  claim  of  title,  in  public  lands, 
is  to  all  intents  and  purposes  a  grant  of  such  lands,*  yet  it 
seems,  that  the  legal  title  to  lands,  confirmed  to  a  private  per- 
son by  act  of  Congress,  or  by  action  of  Government  tribunals, 
remains  in  the  United  States  until  a  patent  is  issued  therefor, 
and,  until  then,  the  confirmee  has  only  an  equitable  title.^ 

§  15.     Occupancy.     Title  by  occupancy  forms  a  sub- head  in 

1  Chicago,  etc.,  R.  R.  v.  Joliet,  79  »  Meader  v.  Norton,  11  Wall.  442. 

111.  25;  Downer  v.  R.  R.  Co.,  22  Minn.  *  Challefoux  v.  Ducharme,  4  Wis. 

2ol.  554. 

^  M.  E.  Church  v.  Hoboken,  33  N.  *  LeBean  v.  Araiitage,  47  Mo.  138; 

J.  L.  13;  Compare  Wilson  v.  Sexton,  Amesti  v.  Castro,  49  Cal.  328. 
27  Iowa,  15. 


TITLE    BY    PURCHASE.  49 

Mr.  Washburn's  admirable  work  on  real  property,'  but  this 
method  does  not  now  seem  to  be  recognized  in  tlie  United 
States,  if  indeed  it  ever  existed.  In  its  broad  sense,  it  is  tlie 
right  or  title  derived  from  an  original  state  of  nature;  hence 
the  American  Indian  liolds  tlie  use  and  enjoyment  of  his 
lands  by  occupancy,  and  thougli  this  title  is  respected  l>y  the 
courts  until  legitimately  extinguished,  it  does  not  extend  to 
property  in  tlie  soil  and  can  not  be  made  the  subject  of  trans- 
fer, while  the  Government  has  ever  reserved  the  exclusive 
right  to  extinguish  this  title  by  purchase  or  conquest.'^  In 
its  technical  sense  it  was  apjilied  to  a  method  of  acquisition 
once  in  vogue  in  England,  where  one  was  tenant  for  the  life 
of  another  who  outlived  him.  The  estate  being  a  freehold  did 
not  go  to  his  personal  representatives,  but  not  being  an  inher- 
itance could  not  go  to  his  heirs,  and  as  a  consequence,  no  one 
havinff  a  le^ral  rischt  to  the  remnant  of  the  estate,  whoever  first 
occupied  it  acquired  such  title  by  possession  and  occupancy, 
that  no  one  could  dispossess  him.  Tiiis  was  a  title  by  occu- 
pancy.* 

§  16.  Abandonment.  This  method  of  acquiring  or  losing 
title  may  be  found  noted  in  all  works  on  real  property,  yet  it 
seems  to  occupy  a  most  uncertain  and  indistinct  position. 
Easements  and  incorporeal  rights  annexed  to  land,  ma}'  be  lost 
by  abandonment.  So  may  an  incipient  right  to  land,  as  a 
location  and  survey,  or  other  merely  equitable  title,  not  per- 
fected into  a  grant  or  vested  by  deed,  but  legal  rights,  when 
once  vested,  must  be  divested  according  to  law.*  "  Yet,"  says 
Wheeler,  C.  J.,  "if  a  person  having  the  disposing  power 
absolutely,  does  an  act  sufficient  in  itself,  legally  to  divest  his 
title  with  the  express  intention  of  relinquishing  and  abandon- 
ing the  property,  it  is  not  easy  to  perceive  why  he  may  not 
do  so.  Abandonment  is  the  relinquishment  of  a  right;  the 
giving  up  something  to  which  one  is  entitled.  If  the  owner 
sees  proper  to  abandon  his  property,  and  evidences  his  inten- 

>  3  Wash.  Real  Trop.  50  (4th  Ed.)-  *  4 Kent  Com.  448;  Picket  v.  Dowl- 

2  Johnson  v.  MeTntosh,  8  Wheat.      ing,  2   Was'i.  (Va.)    106;    Dikes  v. 
543;  Flecher  v.  Peck,  6  Cranch,  87.        Miller,  24  Tex.  417. 
«  Wash.  Real  Prop.  50  (4th  Ed.). 
4 


50  ABSTRACTS   OF   TITLE. 

tion  by  an  act  legally  sufficient  to  vest  or  divest  ownership, 
why  may  he  not  do  so  in  the  case  of  land,  as  well  as  of  a 
chattel?  It  might  go  to  the  Government  instead  of  the  first 
occupant,  upon  the  principle  upon  which  land  escheated  or 
became  derelict."  ^  It  has  been  observed,  that  a  man  shall  be 
held  to  intend  what  necessarily  results  from  his  own  acts. 
Consequently,  when  property  is  abandoned  under  such  cir- 
cumstances as  to  leave  no  doubt  of  the  fact,  no  one  who  has 
taken  possession  of  it  can  be  required  to  relinquish  it;  but 
abandonment  is  a  question  of  fact  fur  which  no  rule  can  be 
formulated,  and  must  be  decided  by  the  circumstances  of  each 
case,^  It  would  seem  that  there  is  nothing  in  principle  to 
prevent  the  owner  from  abandoning  his  right  of  property  in 
land,  provided  the  intention  to  do  so  be  evidenced  by  an  act 
or  deed  legally  sufficient  to  operate  a  divesture  of  the  title, 
yet  this  will  so  seldom  occur  that  a  discussion  of  it  seems  un- 
necessary. Ordinarily  when  title  is  asserted  through  this 
method,  it  will  be  found  to  depend  more  on  long  continued 
adverse  possession  and  the  rights  conferred  by  the  statute  of 
limitations. 

§  17.  Eminent  Domain,  One  of  the  sovereign  attributes 
of  the  State,  is  the  right  to  subject  the  private  property  of  its 
citizens  to  public  uses,  but  with  the  concurrent  obligation  to 
make  just  and  full  compensation  therefor.  It  is  inherent 
in  the  State,  though  usually  reserved  as  well  in  the  organic 
law — the  Constitution;  and  when  it  is  lodged  to  any  extent 
in  corporations,  is  limited  by  the  uses  for  the  furtherance  ol 
which,  on  the  ground  of  public  polic}^  it  is  conferred.  The 
exercise  of  the  riglit  of  eminent  domain  is  primarily  and 
mediately  the  act  of  the  State;  and  corporations  to  which  it  has 
been  delegated,  and  by  wiiich  it  is  immediately  exercised,  are 
but  instrumentalities  of  the  State,  although  they  may  have,  and 
generally  do  have,  corporate  interests  intermingled  and  grow- 
ing out  of  the  exercise  of  this  sovereign  prerogative.^     Though 

1  Dikes  V.  Miller,  24  Tex.  417.    In  ^  Corning  v.  Gould,  16  Wend.  543; 

this  case  the  owner  filed  a  deed  of  Holmes  r.  R.  R.,  8  Am.  Law  Reg.  716. 

relinquishment  in  the  General  Land  ^  Hatch  v.  R.  R.  Co.,  18  Ohio  St. 

Office.  92. 


TITLE    BY    PURCHASE.  51 

the  power  can  only  be  exercised  for  a  public  use,  it  lias  never 
been  deemed  essential  that  the  entire  community  or  any  con- 
f^iderable  portion,  should  directly  enjoy  or  partici])ate  in  the 
benefits  to  be  derived  from  the  purpose  for  which  the  property 
is  appropriated.  It  is  enough  if  the  taking  tends  to  enlarge 
the  resources,  increase  the  industrial  energies,  and  promote 
the  pnjductive  power  of  any  considerable  number  of  the  in- 
habitants of  a  section  of  the  State,  or  leads  to  the  growth  of 
towns  and  the  creation  of  new  channels  for  the  employment 
of  private  capital  and  labor,  such  results  contributing  in- 
directly to  the  general  welfare  and  prosperity  of  the  whole 
community.*  Compensation  is  always  a  condition  precedent 
to  the  appropriation  of  the  property,^  and  when  land  is  acquired 
by  the  public  for  one  particular  use,  no  additional  burden 
can  be  superadded  without  further  compensation." 

§  18.  Title  Acquired  by  Eminent  Domain.  The  general 
rule  in  this  country  is,  that  the  exercise  of  the  power  of 
eminent  domain,  particularly  when  exerted  in  behalf  of  cor- 
porations, extends  only  to  the  use  of  the  property  a]:)pro})ri- 
ated,  and  does  not  include  the  lee.*  The  easement,  however,  is 
usually  regarded  as  perpetual,  and  as  such  forms  the  basis  of 
compensation,  but  should  the  use  be  abandoned,  the  laud, 
disencumbered  of  the  easement  imposed  by  the  appropriation, 
will  revert  to  the  holder  of  the  fee.  It  is  a  cardinal  rule  that 
every  statute  in  derogation  of  the  right  of  property,  or  that 
takes  away  the  estate  of  a  citizen  is  to  be  construed  strictly,' 
and  no  implication  can  be  indulged  in  that  a  greater  interest 
or  estate  is  taken  than  is  absolutely  necessary  to  satisfy  the 
language  and  object  of  the  statute  making  the  appropriation.* 
It  is  not  necessary  that  exact  or  technical  language  should  be 

1  Talbot  V.  Hudson,  82  Mass.  417;      92. 

In  Re  Gas  Co.,  63  Barb.  437.  *  Morris    v.    Turnpike    Road,    6 

2  Eidemiller  v.  Wyandotte  City,  2  Bush  (Ky.),  671;  R.  R.  Co.  v.  Bur- 
Dill.  376;  Cameron  «;.  Supervisors,  47  kett,  42  Ala.  83;  Cooley's  Const. 
Miss.  -64;    Paris  v.  Mason,  37  Tex.  Lim.  559. 

447;   Cook  V.  South   Park  Commis-  ^  Sharp  v.  Spear,  4  Hill.  76. 

sioners,  61  111.  115.  «  Cemetery  v.  R.  R.  Co.,  68  N.  Y. 

»  State  V.   Laverack,  34  N.  J.  L.  591. 
201;  Hatch  tJ.  R.  R.  Co.,  18  Ohio  St. 


52  ABSTEACTS   OF   TITLE. 

used  in  a  statute,  for  taking  private  property  for  public  use, 
in  order  to  vest  the  fee  in  the  public,  but  it  must  clearly  ap- 
pear that  it  was  the  intention  of  the  Legislature,  as  disclosed 
by  the  act  itself,  to  take  a  fee.  If  any  remaining  private 
ownership  is  inconsistent  with  the  use  for  which  the  land  is 
taken,  and  compensation  is  made  for  the  fee,  which  is  also 
necessary  for  the  full  use  of  the  property  under  the  act,  a  fee 
will  be  deemed  to  have  been  taken  in  the  absence  of  express 
words/  In  some  of  the  States  the  fee  passes  as  an  incident,'^ 
and  excludes  any  remaining  rights  in  the  former  owner,  but 
usually  the  extent  of  interest,  or  quantity  and  duration  of  the 
estate  acquired  by  tlie  exercise  of  this  power,  is  derived  from 
the  specific  act  of  appropriation.  The  power  is  a  legislative 
one,  subject  only  to  constitutional  restrictions,  and  the  only 
conditions  requisite  to  its  exercise  are  the  needs  of  the  public 
and  compensation  to  the  owner;  when  tliese  conditions  exist, 
the  right  of  the  State  to  withdraw  the  propertv  from  private 
control  and  subject  to  public  use,  whatever  interest  or  estate 
is  necessary  to  accomplish  the  intended  purpose,  is  complete 
and  perfect,''  and  this  interest,  according  as  the  Legislature 
may  determine,  may  consist  of  an  estate  for  years,  for  life,  a 
mere  easement,  a  conditional  fee,  or  a  fee  simple  absolute.* 
It  would  therefore  appear  that  the  act  of  appropriation,  when- 
ever the  title  has  passed  by  the  exercise  of  this  power, 
together  with  such  of  the  condemnatory  proceedings  as 
may  be  necessary  to  show  the  extent  of  land  taken,  are 
necessary  links  in  the  chain  of  title,  and  should  be  duly  set 
fortii  in  the  abstract. 

§  19.  Escheat.  In  its  original  acceptation,  escheat  was  the 
right  of  the  lord  of  the  fee  to  enter  same,  when  it  became 
vacant  b}''  extinction  of  the  blood  of  the  tenant.  It  was  one 
of  the  incidents  of  feudal  tenures,  and  is  still  occasionallj^  men- 
tioned as  markino;  the  feudal  orio-in  of  American  land  titles. 


'  Park    Commissioners    v.    Ann-  544;  Haldeman  v.'R.  R.  Co.,  50  Pa. 

strong,  45  N.  Y.  234.  *  St.  425;  Giesy  v.  R.  R.  Co.,  4  Ohio 

2  Troy  V.   R.  R.   Co.,  42  Vt.  265;  St.  308. 

Challis  V.  R.  R.  Co.,  16  Kan.  117.  *  Heyward  v.  New  York,  3  Seld. 

'  Dingley    v.   Boston,    100  Mass,  314;  Cooley's  Const.  Lim.  §  558. 


TITLE    BY    PURCHASE.  53 

Notliing  but  the  name,  howev^er,  is  feudal,  and  is  only  another 
instance  in  M-hicli,  in  our  land  system,  a  word  is  applied  in  a 
sense  far  different  from  its  orio^inal  meaninor,  suorarestinof  ideas 
which  have  long  been  exploded.  Escheat,  in  the  United 
States,  depends  upon  positive  statutes.  It  does  not  follow  as 
a  matter  of  right,  but  of  expediency.  The  lord  of  the  fee, 
liolding  the  ultimate  title,  might  with  propriety  assert  his 
ownership,  but  no  such  right  can  be  claimed  by  the  State  nor 
is  the  idea  compatible  with  the  full  prooerty  in  land  lield 
under  an  allodial  title.  It  is,  however,  an  universal  rule  of 
civilized  society  that  when  the  deceased  owner  has  left  no 
heirs,  his  property  should  vest  in  the  public  and  be  at  the 
disposal  of  the  government,' and  by  the  general  rule  of  the 
common  law,  all  real  property  capable  dT  use  and  possession, 
and  having  no  other  acknowledged  owner,  is  in  theory  vested 
in  the  king  as  the  head  and  sovereign  representative  of  the 
nation,  so  the  State,  in  its  right  of  sovereignty,  is  said  to  pos- 
sess the  ultimate  property  of  all  lands  within  its  jurisdiction. 
When  the  owner  dies  intestate  and  leaving  no  inlieritable 
blood,  the  lands  vest  immediately  in  the  State  by  operation  of 
law,^  but  some  proceeding  is  necessary  on  the  part  of  the 
State  to  assert  the  title  thus  acquired,  which  is  accomplished 
b}'-  a  proceedure  usually  termed  "inquest  of  office,"  the  various 
steps  being  prescribed  by  statute,  and  culminating  in  a  decree. 
This  decree,  together  with  thepi-eliminary  proceedings,  forms 
the  record  evidence  of  title  derived  in  this  manner.  Tlic 
State  on  taking  lands  by  escheat,  takes  the  same  title  as  the 
person  last  seized,  and  none  other,  subject  to  the  same  trusts, 
incumbrances,  charges  and  services  to  which  the  ])roperty 
would  have  been  subject  had  it  descended  to  heirs,*  the  State 
being  for  this  purpose  a  statutory  heir  in  default  of  known 
kindred.* 

§  20.     Confiscation.     Closely  allied  to  escheat,  but  resting 
on  a  diiferent  foundation,  is  confiscation,  being  the  right  to 

'  Bou.  Law  Diet.  537;  4  Kent  Cora.  « Trust  Co.  r.  Teople,  1  Sandf.  Ch. 

*  425.  139. 

2  People  V.    Conklin,   2  Hill.   67;  *  Wallace  v.  Harrasted,  44  Penn. 

Sands  V.  Lynham,  27  Gratt.  291.  St.  492. 


5i  ABSTRACTS    OF   TITLE. 

appropriate  to  tlie  use  of  the  State,  the  property  of  alien  en- 
emies during  war.  Respecting  the  power  of  the  Government, 
no  doubt  is  entertained.  That  war  gives  to  the  sovereign  lull 
right  to  take  the  persons  and  property  of  the  enemy  wlierever 
found  is  conceded.  The  mitigation  of  this  rigid  rule,  which 
the  humane  and  wise  policy  of  modern  times  has  introduced 
into  practice,  will  more  or  less  affect  the  exercise  of  this  riglit, 
but  can  not  impair  the  right  itself.'  Save  in  a  few  instances, 
during  the  revolutionary  period,  this  right  lias  been  restricted 
to  seizure  of  personal  property  until  the  late  civil  war,  when 
by  act  of  Congress  of  July  17,  1862,  the  right  of  confiscation 
of  real  estate  was  again  asserted.  But  concurrently  with  the 
passage  of  this  act.  Congress  also  adopted  a  joint  resolution 
explanatory  of  it,  wh6!"eby  it  was  resolved  that  no  punishment 
or  proceedings  under  the  act  should  be  construed  as  to  work  a 
forfeiture  of  the  real  estate  of  the  oflender  beyond  his  natural 
life,  and  courts  when  passing  upon  the  question  have  uniform- 
ly decided  that  contiscatiou  proceedings  reach  only  the  life 
estate  of  the  ownier." 

§  21.  Forfeiture.  The  term  forfeiture  is  used  as  between 
individuals  to  denote  the  method  by  which  an  interest  or 
estate  in  lands  reverts  to  a  former  owner  by  operation  of  law, 
as  by  a  breach  of  condition  in  a  deed  or  lease.  Forfeitures 
are  not  favored  in  law,  and  courts  eagerly  sieze  hold  of  any 
circumstances  by  which  same  may  be  defeated,  and  where 
adequate  compensation  can  be  made,  the  law  in  many  cases, 
and  equity  in  all  cases,  discharges  the  forfeiture  upon  such 
compensation  being  made.^  In  its  more  common  acceptation 
it  is  the  means  by  which  the  property  of  the  citizen  inures  to 
the  benefit  of  the  State  by  reason  of  the  violation  of  law,  and 
in  the  United  States  occurs  only  in  case  of  confiscation  or  seiz- 
ure for  taxes.  In  either  case  it  is  in  the  nature  of  a  penalty,  and 
results  as  a  necessary  incident  from  our  reciprocal  duties  and 
obligations.  As  a  method  of  acquiring  title  it  is  viewed  with 
disfavor  and  is  of  doubtful  effect.     It  is  attended  with  greater 

'  Brown  ».  United  States,  8  Cranch,       Dewey  v.  McLain,  7  Kan.  126. 
110.  ^  Life  Ins.  Co.  v.  Norton,  5  Report- 

2  Biglow  V.  Forrest,  9  Wall.  339;      er,  385. 


TITLE    BY    PURCHASE.  55 

formalities  than  any  other  form  of  purchase,  and  the  title 
derived  throui^h  it  is  liable  to  be  defeated  by  a  vast  number  of 
contini^encies.  Ordinarily,  titles  resting  solely  on  rights 
derived  through  forfeiture,  for  non-payment  of  taxes  or  other- 
wise, are  to  be  viewed  with  suspicion  and  accepted  witli  cau- 
tion, experience  having  demonstrated  in  many  cases  tlieir  un- 
substantial nature. 


CHAPTER  Y. 

SOURCES   OF   INFORJIATION. 

§  1.     Records.  §    9.     Loss  or  destruction  of  records. 

2.  Depositories  of  records.  10.     Official  aids  to  search. 

3.  The    right    of    inspection    of  11.     Grantor  and  grantee  indexes. 

records.  12.  Notice  lis  pendens. 

4.  Doctrine  of  notice.  13.  Plaintiff  and  defendant  in- 

5.  Constructive  notice.  dexes. 

6.  Actual  notice.  14.  Tax  records. 

7.  Registration.  15.  OflScial  certificates. 

8.  Effect  of  recording  acts. 

§  1.  Records.  An  abstract  of  title,  as  compiled  in  the 
United  States,  is  an  abridgement  of  the  public  records,  to 
which  it  also  bears  the  relation  of  a  special  index,  they  being 
the  great  repositories  of  title,  and  the  source  from  whence  the 
examiner  draws  all  his  information.  A  record,  it  has  been 
said,  is  a  written  memorial  made  by  a  public  officer,  author- 
ized by  law  to  perform  that  function,  and  intended  to  serve 
as  evidence  of  something  written,  said,  or  done.*  The  acts  of 
Congress  and  of  the  State  Legislatures  are  the  highest  types 
of  records,  while  the  proceedings  and  determinations  of  the 
courts  are  scarcely  less  in  dignity,  and  by  statutory  enactment 
the  enrollment  of  deeds,  though  made  primarily  to  perpetuate 
the  memory  of  the  facts  which  they  recite,  is  given  tlie  oper- 
ation and  effect  of  records.  These  records  are  of  controlling 
efficacy  in  the  State  where  made,  and  by  the  Constitution  of 
the  United  States  it  is  declared  that  "  full  faith  and  credit 
shall  be  given  in  each  State  to  the  public  acts,  records,  and 
judicial  proceedings  of  every  other  State."  In  matters  of  sales 
and  conveyances  of  land,  records  acquire  a  new   importance 

'  2  Eou.  Law  Diet.  424.   ' 

(56) 


SOURCES   OF    INFORMATION.  57 

from  the  peculiar  American  doctrine  of  constructive  notice, 
which  casts  a  knovvled<^e  of  their  contents  and  import  upon 
subsequent  purchasers,  and  forms  the  chief  incentiv^e  to  the 
production  of  abstracts, 

§  2.  Depositories  of  Records.  Under  the  r^eneral  name  of 
records  are  classed  all  official  acts  of  the  public  officers  in 
relation  to  title;  the  adjudications  and  determinations  of  the 
courts;  ministerial  acts  of  officers  in  furtherance  of  the  taxing 
power,  and  incidentally  all  papers,  whether  Hied  or  en- 
grossed, which  affect  title  by  relation  and  through  tlie  opera- 
tion of  law.  Popularly  the  term  is  apjjlied  to  the  registry  of 
deeds  rather  than  to  the  other  classes  mentioned;  but  all  come 
within  its  signification,  so  far,  at  least,  as  the  purpose  of 
abstract  making  is  concerned,  and  from  all  of  these  varied 
sources  the  examiner  draws  the  details  which  go  to  make  up 
a  full  exposition  of  the  title.  The  registry  of  deeds  furnishes 
the  most  fruitful  Held,  and  the  great  bulk  of  the  examination 
is  compiled  therefrom,  but  recourse  must  also  be  had  to  the 
Government  archives,  the  transactions  of  the  State  Legisla- 
ture, the  files  of  all  the  courts,  State  and  Federal,  ordinances 
of  the  municipality,  and  acts  of  the  officers  exercising  the 
ministerial  dutie3  of  taxation.  Though  easily  enumerated, 
these  sources  cover  a  large  field,  and  one  which  requires  no 
ordinary  abilit}'-  to  fully  encompass. 

§  3.  The  right  of  Inspection  of  Records.  The  right  to 
ins])cct  and  copy  or  abstract  the  ])ublic  records  is  undoubted 
to  those  who  have  some  interest  therein,^  and  indeed  one  of 
the  great  ends  of  registration  would  be  frustrated  were  tliis 
right  denied.  The  question,  however,  has  usually  arisen  only 
wiiere  the  right  claimed  was  to  inspect  or  obtain  a  copy  of 
some  particular  document,  or  those  relating  to  a  given  trans- 
action of  title.  With  respect  to  the  right  of  tht?  abstract 
maker  to  copy  or  abstract  the  entire  records  of  a  county  for 
speculative  purposes,  the  question  may  be  considered  of  such 
modern  origin  as  not  to  have  been  contemplated  or  covered 
by  the  common  law  authorities  relating  to  the   inspection   of 

»  Brewer  v.  Watson,  61   Ala.  310. 


58  ABSTRACTS    OF    TITLE. 

records,'  and  lias  not  been  raised  to  any  extent  in  recent  decis- 
ions. The  abstract  maker  does  not  ask  for  an  inspection  of 
a  record,  and  abstract  thereof,  relating  to  lands  in  wliich  he 
claims  to  have  title  or  interest,  or  concerning  which  he  desires 
information  in  contemplation  of  acqniring  some  right  or  in- 
terest, either  by  purchase  or  otherwise,  and,  except  when 
pursuing  some  special  examination,  he  is  not  the  agent  or  at- 
torney of  parties  seeking  information  because  interested  or 
likely  to  become  so.  On  the  contrary,  the  right  is  based  upon 
neither  a  present  nor  prospective  interest  in  lands,  either  per- 
sonally or  as  a  representative  of  others  who  have,  but  is  fur  his 
own  future  gain  in  furnishing  information  therefrom  to  third 
parties  for  a  consideration.  The  public  records  are  the  repos- 
itories of  the  rights  of  persons  and  of  property,  and  in  many 
cases  hold  the  only  evidence  of  either,  and  the  law  imposes 
upon  courts  and  ministerial  officers  the  duty  of  their  secure 
and  careful  protection  and  preservation;  a  protection  and  pres- 
ervation which  might  be  greatly  jeopardized  if  every  citizen 
at  his  will  and  pleasure  should  be  permitted  to  inspect,  ex- 
amine and  copy  them  in  his  own  wa}^,  and  the  individual 
possesses  no  common  law  right  to  copy  or  abstract  the  entire 
contents  of  a  public  office  in  which  he  has  no  special  interest, 
the  object  in  view  being  simply  private  gain  from  the  posses- 
sion and  use  thereof.^  The  great  utility  of  the  professional 
examiner  is  a  recognized  fact,  however,  and  few  obstructions 
are  placed  in  his  path.  AVith  the  constantly  increasing  com- 
plication of  land  titles,  his  assistance  in  their  proper  adjust- 
ment is  daily  becoming  more  necessary,  and  the  records  of 
his  office  are  freely  taken  by  all  classes  as  evidences  of  title  of 
equal  dignity  with  the  public  records  from  which  they  are 
transcribed.  Though  the  indiscriminate  inspection  of  the  rec- 
ords may  not  be  his  as  a  matter  of  strict  legal  right,  it  is  usu- 
ally cheerfully  accorded  to  him  as  a  matter  of  public  policy 
and  in  furtherance  of  great  public  interests. 

^  Webber  v.   Townley,    43  Mich.  the  latter  case  tbe  judges  afterward 

534.  granted,  as  an   act  of  grace,  what 

2  Webber  v.  Townley,  43  Mich.  534;  they  denied  the  petitioner  to  be  en- 

In  re  McLean,  8  Reporter,  8 '3.     In  titled  to  as  a  matter  of  right. 


SOURCES    OF    IXFOEMATION.  59 

§  4.  Doctrine  of  Notice.  The  principle  is  well  established, 
that  a  purchaser  of  land  is  cliargeable  with  notice,  by  impli- 
cation, of  every  fact  affecting  the  title,  which  would  be  discov- 
ered by  an  exarainaiion  of  the  deeds  or  other  muniments  of 
title  of  his  vendor,  and  of  every  fact,  as  to  which  the  pur- 
chaser, with  reasonable  prudence  or  diligence,  ought  to  become 
acquainted.  If  there  is  sufficient  contained  in  any  deed  or 
recoi'd  which  a  prudent  purchaser  ought  to  examine,  to  induce 
an  inquiry  in  the  mind  of  an  intelligent  person,  he  is  charge- 
able with  knowledge  or  notice  of  the  facts  so  contained,  and 
generally,  a  party  in  possession  of  certain  information  will  be 
chargeable  with  a  knowledge  of  all  facts  which  an  inquiry 
suggested  by  such  information,  diligently  prosecuted,  would 
liave  disclosed  to  him.^  The  purchaser  must  be  presumed  to 
investigate  the  title,  and  to  examine  every  deed  or  instrument 
forming  a  part  of  it,  especiall}'  if  recorded,^  and  to  make  in- 
quiries ui  jxiis  as  well  as  look  at  records.'  Notice  is  classified 
as  either  actual  or  constructive;  but  there  is  no  difference 
between  them  in  regard  to  the  legal  consequence  or  effect.* 

§  5.  Constructive  Notice.  It  is  scarcely  possible  to  de- 
clare a  priori  what  shall  be  deemed  constructive  notice,  be- 
cause unquestionably  that  which  may  not  affect  one  man  n^.ay 
be  abundantly  sufficient  to  affect  another,  and  Sugden  observes, 
"  that  everyone  who  has  attempted  to  define  what  it  is,  has  de- 
clared his  inability  to  satisfy  even  himself."*  It  has  been 
lield  that  where  a  party  has  actual  notice  of  anything  by  which 
jtroperty  is  charged  or  affected,  he  is  bound  with  constructive 
nt>tice  of  facts  and  instruments  to  a  knowledge  of  which  lie 
would  have  been  led  by  inquiry',  and  which  would  have  re- 
vealed the  true  state  of  the  title.®  Such  would  also  be  the 
case  when  a  ]>arty  has  designedly  abstained  from  inquiry  for 
the  very  purpose  of  avoiding  notice,  for  the  policy  of  the  law, 

'  Cambridfrp   Bank   v  Delano,  48  Morrison  v.  Kelly,  22  111.  610;  Ellison 

N.  Y.  y26;  Wilson  v.  Hunter,  30  Ind.  v.  Wilson,  36  Vt.  67. 

406.  *  2  Sugden  on  Vendors,  570  (Am. 

2  Acer  V.  Wescott,  46  N.  Y.  384.  Ed.). 

'  Littleton  V.   Giddings,    47  Tex.  *  1  Story's   Eq.  §  399,  and    cases 

109.  cited. 

*  Hill   V.  Epley,  31  Pa.   St.  335; 


GO  ABSTRACTS    OF    TITLE. 

and  the  safety  of  tlie  public,  forbids  a  person  to  deny  knowl- 
edge, while  he  is  so  dealing  as  to  keep  himself  ignorant,  and 
if  he  omit  to  make  examination  and  inquiry  in  a  proper  case, 
he  is  conclusively  charged  with  negligence,  and  with  notice 
of  the  defects  in  the  title.'  In  this  country  it  has  been 
nniforuily  held  that  the  record  of  a  conveyance,  executed  in 
conformity  to  law,  operates  as  constructive  notice  to  all  sub- 
sequent purchasers  or  incumbrancers,  claiming  under  the 
same  grantor  of  any  estate,  either  legal  or  equitable,  in  the 
same  propei'ty,  provided  the  conveyance  be  one  which  the  law 
requires  or  authorizes  to  be  recorded.^  A  subsequent  pur- 
chaser is  not  chargeable  with  constructive  notice  of  all  instru- 
ments of  record,  by  whomsoever  made,  but  only  of  such  as  lie 
in  the  apparent  chain  of  title,  or  may  be  made  by  one  in  some 
way  connected  with  the  property  involved  in  interest,  and 
brought  to  his  notice.^  He  is  not  bound  to  look  for  convey- 
ances by  or  judgments  ai^ainst  one  in  whom  the  record  shows 
no  title.  The  recording  acts,  for  the  purpose  of  information 
and  constructive  notice,  have  not  altered  or  abolished  the 
rules  of  equity  in  relation  to  actual  or  constructive  notice,  by 
other  means  than  the  recording  acts.* 

§  6.  The  same — actual  notice.  Where  a  purchaser  has 
knowledge  of  any  fact  sufficient  to  put  a  prudent  man  upon 
an  inquiry,  which,  if  prosecuted  with  ordinary  diligence, 
would  lead  to  actual  notice  of  some  right  or  title  in  conflict 
with  that  he  is  about  to  purchase,  it  is  his  duty  to  make 
the  inquiry,  and  if  he  does  not  make  it,  he  is  guilty  of 
bad  faith  or  nei^ligence  to  such  an  extent  that  the  law  will 
presume  that  he  made  it,  and  will  charge  him  with  the  actual 
notice  he  would  have  received  if  he  had  made  it.*  Open, 
notorious  and  exclusive  possession  of  land  imparts  notice  of 
the  title  of  the  person  in  possession,"  and  of  every  fact  which 

'  1  Story's  Eq.  399,  and  cases  cited.  ^  Cambridge  Bank  v.  Delano,  48 

2  1  Story  Eq.  Jur.  §  40o;  Tilton  v.  N.  Y.  326. 

Hunter,    29   Maine,  29;    Crockett  v.  ^  Greer  v.  Higgins,  20  Kan.  420; 

McGuire,  10  Mo.  34.  Mechan   v.  Williams,   48  Penn.  St. 

'  Carbine  v.  Pringle,  90  111.  302.  241;   Cabeen  v.  Buckenridge,  48  111. 

*  Bourland  v.  Peoria,  16  111.  538.  91. 


SOUKCES   OF   IXrOUMATION'.  Gl 

the  purchaser  might  learn  by  inquiry,^  bat  this  rule  docs  not 
apply  to  a  vendor  remaining  in  possession,  so  as  to  require  a 
purchaser  from  liis  gi*antee  to  inquire  whether  he  has  reserved 
any  interest  in  the  land  conve^-ed.  So  far  as  the  purchaser  is 
concerned,  the  vendor's  deed  is  conclusive  on  that  sul)ject.''^ 
AVhile  it  is  quite  true,  generally,  that  the  law  regards  the 
actual  occupancy  of  land  as  equivalent  to  notice,  to  all  persons 
dealing  with  the  title,  of  the  claim  of  the  occupant,  this  is  not 
an  absolute  proposition,  which  is  to  be  taken  as  true  in  all 
possible  relations,  other  than  the  one  last  noticed.  The  cir- 
cumstances known  maj''  be  such  that  the  occupancy  will  not 
suggest  to  a  purcliaser  an  inquiry  into  the  title  or  claim  under 
which  it  may  be,  and  when  the  inquiry  may  be  omitted  in 
good  faith  and  in  the  exercise  of  ordinary  prudence,  no  one  is 
bound  to  make  it.  Possession  out  of  the  vendor  and  actually 
in  another  person  ordinarily  suggests  an  inquiry  into  the 
claim  of  the  latter,  and  evinces  gross  neglect  in  a  failure  so  to 
do;  but  the  question  in  such  cases  is  one  of  actual  notice,  and 
such  notice  will  be  imputed  only  where  it  is  a  reasonable  and 
just  inference  from  the  visible  facts.'  As  distinguished  from 
constructive  notice,  actual  notice  consists  in  express  informa- 
tion of  a  fact  brought  home  to  a  party,  or  a  knowledge  of  cir- 
cumstances which  should  lead  him  to  a  knowledge  of  such 
fact. 

§7.  Registration.  The  system  of  registration  practiced  in 
the  United  States  is  unknown  to  the  common  law  and  is  es- 
sentially a  creation  of  the  statute.  It  is  doubtless  derived 
from  the  English  statute  of  enrollments,  which  was  enacted  to 
counteract  the  evil  effects  resulting  from  the  practice  of  se- 
cret convej^ances  under  the  statute  of  uses.  This  statute  pi-o- 
vided  that  every  bargain  and  sale  of  an  inheritance  or  freehold 
should  be  by  deed  indented  and  enrolled  within  six  lunar 
months  from  its  date,  either  in  one  of  the  courts  of  "Westmin- 
ster,   or    before    the  justices   and  clerk  of  the  peace  in  the 

1  Tankard  v.  Tankard,  79  N.  C.  spoi^^pj-oy  v.  Stevens,  11  Met.  244; 
54;  Pritchard  v.  Brown,  4  N.  H.  897.  Dooly  v.  Walcott,  4  Alien,  406;  Jack- 

2  Van  Keuren  v.  R.  R.  Co.,  38  N.  son  v.  Elston,  12  John.  426. 
J.  L.  1G5. 


62  ABSTRACTS    OF   TITLE. 

conntj^  where  the  Lauds  were  sitiKate.  The  enrollinj^  of  a  deed 
did  not  make  it  a  record,  but  it  was  recorded  "to  be  kept  in 
memory."'  By  the  American  system  of  rei^istration,  convey- 
ances of  any  estate  or  interest  in  hind,  when  duly  recorded  in 
conformity  with  the  law  of  the  State  wliere  such  hxnd  is  situ- 
ate, have  the  dignity  and  effect  of  records,  and  to  them  much 
of  the  stability  of  our  land  titles  is  attributable.  Such  record 
not  only  serves  as  a  means  of  preservation  of  the  muniments 
and  evidences  of  title,  but  also  has  the  effect  to  give  that  no- 
toriety to  the  transfer  formerly  obtained  by  livery  of  seizin,  to 
which  it  is  made  equivalent  in  some  of  the  States  by  statute.''' 
The  statutes  of  registration  bear  a  close  similitude  in  all  the 
States,  and  provide  generally  for  the  recording  of  every  in- 
strument in  writing,  by  which  any  estate  or  interest  in  real  es- 
tate is  created,  aliened,  mortgaged,  or  assigned,  or  by  which 
the  title  to  any  real  estate  may  be  affected  in  law  or  equity. 

§  8.  Effect  of  Recording  Acts. — It  is  a  familiar  provision  of 
the  recording  acts,  that  every  conveyance  which  shall  not  be 
recorded  as  provided  by  law,  shall  be  void  against  any  subse- 
quent purchaser  in  good  faith,  and  for  a  valuable  considera- 
tion, of  the  same  real  estate,  or  any  portion  thereof,  whose 
conveyance  shall  be  first  duly  recorded;  and  further,  that  every 
instrument  recorded  in  the  manner  prescribed  hy  statute, 
shall  from  the  time  of  filing  same  for  record,  impart  notice  to 
all  persons  of  the  contents  thereof.  It  would  seem,  however, 
that  the  constructive  notice  afforded  by  the  record  of  a  deed, 
applies  only  to  those  who  are  bound  to  search  for  it;  as  sub- 
sequent purchasers,  and  all  others  who  deal  with  or  on  the 
credit  of  the  title,  in  the  line  of  which  the  recorded  deed  be- 
longs.' That  such  record  imparts  notice,  is  to  be  understood 
also,  in  the  sense  that  the  contents  of  the  deed  are  correctly 
spread  upon  the  record,*  for  the  recording  acts  can  not  be 
made  by  equitable  construction  to  embrace  cases  not  within 
them,  or  to  give  constructive  notice  of  things  the  records  do 

'  Jacob's  Law  Diet.  457;  Tiffany  on  Corbin    v.    Sullivan,    47   fnd.  356; 

Registration.  Gillett  v.  Gaffney,  3  Col.  351. 

2  Higbee  v.  Rice,  5  Mass.  344.  *  Terrell  i\  Andrew  County,  44  Mo. 

3  Maul  V.  Rider,   59  Pa.    St.    167;  309;  McLouth  v.  Hurt,  61  Tex.  115. 


60UECES   OF   INFORMATION.  C3 

not  show;  and  where  a  mistake  is  made  in  recording,  a  subse- 
quent purchaser  has  a  right,  in  the  absence  of  actual  notice 
of  the  mistake,  to  rely  on  the  records  as  showing  the  exact 
facts.^  But  incorrect  registration  can  not  avail  a  party  who 
is  not  misled  thereby.''  The  registry  of  an  instrument  not 
required  bj'  law  to  be  recorded  is  notice  to  no  one,^  and  in  the 
absence  of  statutory  provisions  to  the  contrary,  a  deed  is  not 
constructive  notice,  because  copied  into  the  registry,  if  it  has 
not  been  duly  executed,  acknowledged  or  proved,  so  as  to  en- 
title it  to  registration,*  though  such  an  instrument  is  effective 
as  to  all  parties  who  have  actual  notice  of  its  contents.^  Eetr- 
istration  in  legal  intendment  is  conclusive  notice  to  tlie  par- 
ties to  be  affected  by  it.  But  notice  of  a  prior  unrecorded 
deed,  communicated  to  a  purchaser,  will  prevail  over  a  sub- 
sequent recorded  deed,®  and  as  between  the  immediate  par- 
ties no  registration  is  necessary,  an  unrecorded  deed  having 
the  effect  to  carry  the  legal  title  as  against  all  persons  having 
actual  notice  of  its  existence.' 

§  9.  Loss  or  Destruction  of  Records.  The  obligation  of 
giving  the  notice  required  by  law  rests  upon  the  party  holding 
the  title,  and  if  his  duty  is  imperfectly  performed,  he,  and  not 
an  innocent  purchaser,  must  suffer  the  consequence^,^  yet  in  a 
majority  of  the  States  that  duty  is  effectively  performed  by  filing 
the  deed  or  instrument  for  record,  and  when  this  has  been  ac- 
complished, the  party  has  done  all  that  the  law  requires.®  Where 
a  party  has  in  all  respects  complied  with  the  law,  the  total  or 
partial  loss  or  destruction  of  the  record  will  not,  it  seems,  im- 
pair any  rights  which  may  have  accrued  thereunder,  nor  affect 
the  constructive  notice  afforded  by  the  filing  or  recording  of 

1  Frost  v.  Beekman,  1  John.    Ch.  Blood  v.  Bbod,  23  Pick.  80;  Bishop 

288;  Barnard  v.   Campan,  29  Mich.  v.  Schneider,  46  Mo.  472. 

162;  Wait  V.  Smith,  92  111.  385;  Com-  ^  Bass  v.  Estill,  50  Miss.  300. 

pare  Riggs  v.  Boylan,  4  Biss.  445.  *  Claiborne  v.  Holmes,  51    Miss. 

2Gaskilli7.Badge,  3  Lea(Tenr.),  146. 

144.  '  Musgrove  p.  Bonser,  5  Oreg.  313. 

^  Galpin  v.    Abbott,  6  Mich.    17;  *  Terrell  v.   Andrew    County,    44 

Sigoiu-ney  v.  Lamed,  10  Tick.  72.  Mo.  309. 

*  Loiighridge  v.  Bowland,  52  Miss.  '  Riggs  r.  Boylan,  4  Bisa.  445. 
54G;  Pringle  v.  Dunn,  37  Wis.  449; 


64:  ABSTRACTS    OF    TITLE. 

the  instruments,  wliich  still  remain  of  binding  force  and 
effect  upon  subsequent  purchasers.^  In  the  event  of  the  de- 
struction of  the  record,  as  well  as  of  the  original  instrument, 
an  abstract,  shown  to  be  made  in  the  ordinary  course  of  busi- 
ness, and  delivered  to  the  parties  interested  in  the  land,  is,  as 
to  such  lost  instrument,  competent  evidence  of  the  facts 
therein  recited,  either  by  comity  or,  in  some  States,  by  express 
enactment;^  but  where  such  abstract  is  unintelligible  without 
the  aid  of  some  proof  to  explain  the  meaning  of  abbreviations 
and  initial  letters  used  therein,  unless  some  stipulation  has  been 
made  which  determines  what  effect  shall  be  given  to  them,  it 
would  seem  tliat  the  abstract  is  insufficient  to  establish  title.' 

§  10.  Official  Aids  to  Search.  No  perfect  abstract  can  be 
compiled  without  the  assistance  of  a  carefully  prepared  tract 
index,  the  details  of  which  will  be  fully  considered  in  another 
p'ace;  and  should  the  county  records  be  supplemented  with 
this  indispensable  adjunct,  the  searcher  will  liave  less  difficulty 
and  experience  more  satisfactory  results.  Presuming,  how- 
ever, tliat  no  books  of  tliis  character  are  provided  by  the 
authorities,  recourse  must  be  had  to  such  doubtful  aids  as  by 
law  the  various  officers  are  required  to  keep.  These  consist 
ordinarily  of  a  series  of  alphabetically^  arranged  indexes  with 
brief  descriptions  of  the  property.  Well  kept,  tliey  \vill  be  of 
much  assistance;  if  otherwise,  they  will  prove  very  mislead- 
ing. In  all  sales  of  real  estate,  where  no  better  methods  are 
available,  these  indexes  should  be  carefully  consulted  and  a 
rough  chain  obtained,  which,  by  reference  to  the  records  can 
be  amplified  into  an  abstract. 

§  11.  Grantor  and  Grantee  Indexes.  The  grantor  and 
grantee  indexes  of  the  Registry  of  Deeds,  will  show  the  suc- 
cessive conveyances  and  incumbrances,  under  the  names  of 
the  various  parties,  who  at  different  times  have  held  the  title, 
loJiere  there  has  been  no  hrealz  in  the  chain^  together  with  the 
volume  and  page  of  the  record  on  which  the  instruments  may 
be  found.     Adverse  deeds,  unless  within  the  knowledge  of  the 

'  Meyers  v.   Buchanan,  46  Miss.  ^  Russell  v.  Mandell,  73  111.  136. 

397;  Gammon  v.  Hodges,  73111.  UO;  ^  Weeks  v.  Dewing,  30  Mick.  4. 

Steele  v.  Boone,  75  111.  457. 


.       SOURCES   OF   INFOKMATIOX.  65 

examiner,  ean  rarely  be  found  by  this  metliod,  or  if  found  are 
usually  the  result  of  accident  rather  than  design.  Should  a 
brief  description  of  the  property  be  carried  out,  as  is  usually 
the  case,  ending  with  the  section,  town  and  range,  in  proper 
columns,  tliese  columns  should  always  bs  carefully  run  down 
for  any  convej'ances  that  ni:iy  have  escaped  the  searcher's  at- 
tention, while  going  over  the  names.  While  it  ma}'-  be  the 
duty  of  the  recorder  to  keep  a  proper  index  of  his  books  of 
registration,  so  that  one  searching  the  records  may  easily  find 
what  is  «r  is  not  contained  therein,  ^et  a  conveyance  properly 
filed  and  copied  on  the  records  is  recorded  within  the  mean- 
ing of  the  law,  and  imparts  notice  to  subsequent  purchasers, 
iiotwithstandino'  the  failure  of  the  recording: officer  to  index  it. 
The  index  is  no  part  of  the  records.' 

§  12.  Notice  Lis  Pendens.  As  a  further  precaution  care- 
ful search  must  aiwaj^s  ba  made  for  notices  lis  pendens^  or 
attachments.  These  are  usually  kept  in  books  "separate  from 
the  records  of  deeds  and  mortgages,  and  very  frequently  are  not 
noted  on  the  reception  or  alphabetical  indices,  particularly  in 
smaller  counties  where  less  method  is  observed  than  in  larger 
and  more  active  places.  When  riled  according  to  law  the}'' 
create  a  lien  upon  the  land  and  are  notice  to  all  subsequent 
purchasers.  Whoever  takes  a  title  to  property  in  litigation, 
pendefite  life,  will  be  bound  by  the  judgment  or  decree  in  the 
suit.* 

§  13.  Plaintiff  and  Defendant  Indexes.  The  plaintiff  and 
defendant  indexes  of  the  courts,  when  such  are  kept,  should 
be  further  consulted  for  judgments  and  pending  suits,  against 
any  of  the  parties,  who  at  any  time  during  the  period  that 
judgments  are  a  li*-n  on  land,  have  held  title  to  the  property 
in  question.  The  index  generally  shows  the  present  status  of 
the  case  and  refers  to  other  records  or  files  where  its  history 
may  be  obtained.     These  books  will  be  found  far  more  satis- 

'  Bishop  V.  Schneider,  46  Mo.  472;  Iowa,  154. 

Chatham  v.  Bradford,  50  Ga.  327,  ^Crooker  v.  Crooker,  57  Me.*395; 

Board  of  Commissioners  v.  Babcock,  Leitch  i'.  Wells,  48  N.  Y.  585;  Jack- 

5  Oreg.  472;  Tns.  Co.  v.  Dake,  87  N.  son  v.  Warren,  32  III.  331. 
Y.  257;  but  see  Howe  v.  Thayer,  49 
5 


66  ABSTKACTS    OF    TITLE. 

factory  in  their  results  than  the  indexes  of  tlie  recorder's  office, 
thongli  not  alvvaj's  available  to  detect  adverse  matters. 
Should  these  useful  tooks  not  form  a  part  of  the  machinery 
of  the  clerk's  office,  recourse  must  be  had  to  the  judgment 
docket. 

§  14.  Tax  Records,  A  further  search  must  also  be  made 
in  the  records  of  the  county  clerk's,  or  auditor's  office  for 
delinquent  taxes,  tax  sales,  forfeitures  and  judgments,  the 
indices  and  aids  by  way  of  reference  in  this  department  being 
usually  very  ample,  and  affording  all  the  informatian  neces- 
sary. 

§  15.  Official  Certificates.  It  is  frequently  the  custom  of 
the  examiner  to  append  to  an  abstract  of  this  character,  the 
certificates  of  the  officers  having  the  custody  of  the  records 
examined,  yet  in  a  majority  of  cases  such  certificates  do  not 
materially  enhance  the  value  of  the  examination  as  evidence, 
and  unless  forming  a  part  of  their  official  duty  create  no  re- 
sponsibility on  the  part  of  the  certifying  officer. 


CHAPTEll  YL 

INDICES   AND    KEFEKENCES. 

§  1.  Importance  of  indexes.  §  8.  The  tract  index. 

2.  Patent  systems.  9.  The  irregular  index. 

3.  The  Government  tract  book.  10.  The  tax  index. 

4.  Field  notes  of  government  sur-  11.  The  judgment  index. 

veys.  12.  Decrees  and  sales  in  chancery. 

5.  The  original  entry  books.  13.  Laying  out  the  books. 

6.  Document  number  index.  14.  Resume. 

7.  Long  form  entries. 

§  1.  Importance  of  Indexes.  In  many  portions  of  the 
United  States  no  indexes  are  Icept  by  the  examiner,  who  re- 
lies, in  the  preparation  of  his  abstract,  solely  upon  such  meager 
facilities  and  aids  as  are  usually  afforded  by  the  public  offices, 
the  details  of  which  were  fully  considered  in  the  preceding 
chapter.  A  perfect  and  complete  abstract,  however,  can  be 
compiled  only  with  the  assistance  of  properly  prepared  in- 
dices and  references,  by  the  aid  of  which  the  examiner  will  be 
enabled  to  produce  a  perfect  chain  of  recorded  title,  however 
intricate  or  complicated  it  may  be:  without  tliem,  diligence 
and  learning  will  avail  but  little,  and  the  abstract  as  a  neces- 
sary consequence,  be  incomplete  and  lacking  in  many  impor- 
tant particulars. 

§  2.  Patent  Systems.  In  this  age  of  labor-saving  inventions 
it  is  not  strange  that  many  schemes  should  have  been  devised 
to  lighten  and  abridge  the  labors  of  the  examiner  in  the  prep- 
aration of  abstracts  of  title.  These  "systems"  are  usually 
protected  by  copyright  or  letters  patent,  and  warranted  by 
their  respective  originators  to  meet  ail  the  exigencies  that  can 
possibly  arise.  Not  infrequently  some  of  these  patent  systems 
possess  merit,  and  in  a  limited  way  may  encompass  the  end 

(G7) 


68  ABSTRACTS    OF   TITLE. 

for  which  they  are  desi<j^ned.  Experience  lias  not  demon- 
strated their  usefulness,  however,  but  on  the  contrary,  in  most 
cases  has  shown  their  utter  inutility.  As  a  rule  tliev  are 
hiijlily  chimerical,  and  in  practice  prove  a  fraud,  a  delusion 
and  a  snare. 

There  is  no  royal  road  to  abstract  makinii;  known  to  t  he 
writer,  and  the  examiner  who  desires  to  produce  onlj'  just 
and  perfect  work  will  derive  but  little  assistance  from  any 
method  that  seeks  to  dispense  with  conscientious  labor,  or 
avoid  the  deep  and  thorough  investigation  essentially  neces- 
sary to  a  full  and  accurate  development  of  title.  An  abstract 
prepared  on  any  of  the  patent  methods  which  have  been 
brouo^ht  to  the  attention  of  the  writer,  if  at  all  complicated  or 
involving  intricacies  of  title,  must  needs  be  imperfect,  and 
lience  unreliable,  and  counsel  should  reject  such  compila- 
tions, or  at  most  pass  only  a  qualified  opinion.  The  methods 
detailed  in  this  volume  are  neither  patent  nor  copyright  sys- 
tems. They  are  the  results  of  years  of  practice,  and  are  those 
now  employed  by  the  abstract  makers  of  Chicago,  where  this 
science  has  been  more  fully  developed  than  in  any  other  place 
in  the  world. 

§  3.  The  Government  Tract  Book.  Among  the  perma- 
nent archives  of  a  local  government  land  office  are  a  series  of 
township  plats  and  tract  books,  upon  which  it  is  the  duty  of 
the  Kegister  to  note  a  proper  entry  of  the  fact  of  the  sale  of 
any  land  in  the  district.  These  tract  books  are  arranged  in 
the  regular  order  of  townsiiips  in  a  range,  and  of  sections  in 
the  township,  or  fractional  township,  and  afford  all  the  neces- 
sary particulars  of  the  method  of  the  disposal  of  the  land  in 
the  district;  name  of  purchaser;  price  paid;  number  of  certifi- 
cate, etc.  Where  the  land  office  is  still  in  operation  these 
particulars  can  be  obtained  from  the  Register,  and  in  districts 
where  same  has  been  discontinued,  tlie  archives  are  usually  de- 
posited, in  pursuance  of  an  act  of  Congress,  in  the  office  of  the 
Secretary  of  State,  or  some  other  designated  officer,  of  the 
State  in  which  the  land  office  was  situate.  A  copy,  or  com- 
pilation, of  the  government  land  office  records  forms  the  fouTi- 
dation  of  all  the  examiner's  indices,  and  will  be  found  an  inval- 
uable adjunct,  if  not  an  indispensable  requisite,  to  all  effective 


INDICES    AND    REFERENCES.  69 

examinations  sliowincj  tlie  entire  course  of  title.  This  index 
should  briefly  indicate:  the  governmental  description  of  tlie 
land;  the  name  of  the  purchaser;  the  character  of  the  entry,  a« 
sale,  homestead,  etc.;  the  date  of  entry;  number  of  certificate, 
and  note  of  cancellation  and  re-entry,  if  any;  and  finally'  the 
issuance  of  patent,  with  date  and  name  of  patentee.  Recourse 
for  the  latter  information  must  be  made  to  the  General  Land 
Office  at  Wasiiington,  if  necessary,  as  the  possession  of  the 
inlonnation  is  essential  and  will  save  much  time,  annoyance 
and  many  perplexing  questions  to  client  and  counsel,  owing 
to  the  usual  loose  metiiods  of  early  proprietors  and  the  imper- 
fection of  county  records. 

§  4.  Field  Notes  of  Government  Surveys.  The  field  notes 
of  the  government  surveyors  afibrd  the  elements  from  which 
the  plats  and  calculations  in  relation  to  the  public  surveys  are 
made,  and  are  the  source  wherefrom  the  description  and  evi- 
dence of  locations  and  boundaries  are  officially  delineated  and 
set  forth.  They  contain  a  minute  record  of  all  the  official  acts 
of  the  surveyor,  in  relation  to  the  measurement  of  the  public 
lands,  establishing  of  boundaries,  etc.,  and  present,  as  far  as 
possible,  a  full  and  complete  topographical  description  of  the 
country  surveyed.  A  copy  of  these  notes,  as  well  as  of  the 
official  township  plats  made  in  connection  therewith,  should  be 
found  in  every  abstract  office,  for  the  field  notes  of  the  origi- 
nal survey  enter  into  and  form  part  of  the  description  of  land 
in  all  the  certificates  of  entry  and  patents  from  the  govern- 
ment, and  are  of  controlling  importance  in  determining  tlie 
true  location  of  public  lands.*  The  original  monuments,  as 
long  as  they  can  be  ascertained,  afford  the  most  satisfactory  if 
not  conclusive  evidence  of  the  lines  originally  run,  which  are 
the  true  boundaries  of  the  tract  surveyed,  whether  they  con- 
form to  the  plat  and  field  notes  or  not,  on  the  principle  that 
monuments  always  control  courses,  distances,  quantity,  etc. 
These  monuments  are  regarded  as  facts,  while  the  field  notes 
and  plats  indicating  courses,  distances  and  quantities,  are  but 
descriptions  which  serve  to  assist  in  ascertaining  those  tacts," 

»  Hunt  V.  Rowley,  87  111.  491.  '  McClintoek  r.  Rogers,  11  111.  279. 


TO 


ABSTRACTS   OF   TITLE. 


jet  when  sncli  inonnments  become  lost  or  obliterated  by  time, 
accident  or  design,  the  notes  and  plats  are  all  that  remain  to 
iix  the  original  location  of  the  monuments  and  determine  true 
boundaries,'  No  description  can  be  more  definite,  certain  and 
satisfactory  than  according  to  government  survey.^ 

§  5.  The  Original  Entry.  The  books  used  in  the  business 
of  abstract  making  resemble,  in  manj'  particulars,  those  in 
common  use  in  mercantile  transactions,  the  day  book  and 
ledger  of  the  merchant  bearing  a  strong  analogy  to  the  origi- 
nal entry  and  index  of  the  examiner.  The  series  of  books  des- 
ignated as  original  entries,  comprise  an  epitome  of  the  trans- 
actions of  the  day  in  the  various  record  ofiiices  of  the  county,  so 
far  as  the  same  may  in  anyway  affect  or  implicate  the  title  to 
land,  set  forth  with  whatever  degree  of  fullness,  the  exi- 
gencies of  the  occasion  will  admit,  or  the  inclination  of  the 
examiner  dictate.  There  is  no  special  method  of  arranging 
these  books,  the  convenience  of  the  compiler  usually  deter- 
mining this  point,  the  only  essential  beingthat  the  transactions 
of  the  day  are  shown  under  proper  chronological  heads. 
"Where  the  volume  of  business  daily  passing  through  the  re- 
corder's office  is  ver\^  large,  only  a  brief  note,  showing  the  nat- 
ure of  the  instrument,  parties,  date,  and  a  condensed  descrip- 
tion of  the  property,  can  be  shown  on  the  original  entry,  the 
date  at  the  top  of  the  page  showing  the  date  of  record,  thus: 

Nov.  29,  1882. 


Doc.  No        Grantor. 


Grantee. 


Inst. 

Date. 

Description. 


In  Chicago,  where  from  two  to  three  hundred  instruments 
frequently  pass  through  the  recorder's  office  in  a  single  day, 
the  above  method  is  pursued,  the  examiner  making  his  entries 
from  the  original  instruments;  the  only  practical  system  under 
circumstances  similar  to  the   foreiroincr.     Where  the  orisfinal 


1  Sawj-er  v.  Cox,  63  111.  130;  Bau- 
er v.  Gattraanliausen,  65  111.  499. 


2Kruse  v.  Scripps,  11  111.  9S. 


INDICES    AND    REFERENCES. 


71 


instrninent  forms  tlie  basis  of  the  entry  a  further  index  is 
necessaty  to  furnish  the  book  and  page  of  the  record  for  ready 
reference  in  making  the  abstract,  which  is  easily  accomplislied 
where  the  now  very  universal  system  of  document  numbers 
is  employed.  After  the  instrument  has  been  formally  filed 
for  record  the  actual  transcribing  does  not  occur  for  several 
days  or  perhaps  weeks,  yet  as  the  instrument  takes  effect  and 
operates  as  constructive  notice  from  the  time  it  is  filed,  from 
obvious  reasons  the  examiner  luust  obtain  his  notes  of  same 
at  that  time  and  not  wait  for  the  uncertain  contingency  of  act- 
ual transcription.  The  docutnent  number  is  placed  on  the 
instrument  at  the  time  of  filing,  and  forms  a  portion  of  tiie 
original  entry;  it  is  posted  as  well  on  the  tract  index,  and  in 
making  up  the  chain,  (as  hereafter  explained)  forms  a  key  by 
which  the  particular  instrument  is  always  identified. 

§  6.  Document  Number  Index.  As  the  numbers  run  in 
consecutive  order,  a  book  called  the  Document  Number  Index 
is  provided,  in  which  all  the  numbers  of  the  series  are  first 
written  or  printed.  At  the  close  of  business  hours  of  each 
day,  all  the  instruments  which  liave  been  transcribed  during 
the  day  are  collected,  and  opposite  the  number  of  the  deed  in 
the  Document  Number  Index,  are  written  the  book  and  page 
on  which  it  had  that  day  been  recorded,  thus  furnishing  a 
ready  and  easy  reference  to  the  books  of  the  ofiice,  thus: 

1—100 


Doc.  No. 

Book. 

Page. 

Doc.  No. 

Book. 

Page. 

100 

614 

520 

§  7.  Long  Form  Entries.  "Whenever  practicable,  the  orig- 
inal ent.'-y  should  consist  of  a  full  abstract  of  every  instrument. 
In  the  cities  this  is  frequently  impossible,  but  in  sparsely  set- 
tled counties,  or  in  places  where  only  a  small  number  of  con- 
veyances are  filed  daily,  it  can  easily  be  accomplished,  and  the 
examiner  will  then  have,  in  his  own  possession,  a  complete 
duplicate  of  the  material  parts  of  all  the  records  of  the  county, 


72  ABSTRACTS    OF    TITLE. 

an  acquisition  that  circumstances  may  make  of  inestimalile 
value.  By  tliis  metliod  the  greater  portion  of  tlie  abstract 
can  be  compiled  without  consulting  the  records,  thus  effect- 
ing a  great  saving- of  time,  labor  and  expense,  and  in  many 
other  waj'S  it  will  be  found  equally  advantageous.  It  is  un- 
necessary to  dilate  on  the  subject  of  care  and  accuracy  in  the 
compilation  of  these  entries,  or  the  necessity  of  thorough 
revision.  When  made  from  the  original  documents,  errors, 
unless  of  a  very  radical  nature,  may  be  detected  on  abstracting 
the  deed  from  the  records,  but  if  the  long  form  system  be 
used,  an  error  perpetrated  in  the  entries  will  be  repeated  in 
the  indexes,  and  again  in  the  abstract,  furnishing  endless  con- 
fusion and  a  remote  possibility  of  a  law  suit  for  damages, 

§  8.  The  Tract  Index.  The  tract  index  occupies  much 
the  same  position  in  the  abstract  ofBee,  that  the  great  ledger 
does  in  the  counting  room.  It  is  the  receptacle  for  all  the 
notes  of  the  entry  books,  where  the  great  mass  of  each  day's 
transactions  is  separated,  classified  and  arranged,  and  exhibits 
at  a  glance  on  its  broad  pages,  the  balance  sheet  of  all  the 
land  titles  of  the  county.  It  is  the  foundation  stone  upon 
which  the  entire  superstructure  of  the  business  rests,  and  the 
source  from  whence  the  examiner  draws  all  his  primary  in- 
formation in  preparing  the  abstract.  This  index  is  arranged 
with  sole  reference  to  the  land  in  the  county,  by  sections  or 
parts  of  sections  in  case  of  unsubdivided  lands,  and  by  lots, 
blocks  or  subdivisions  in  respect  to  such  as  have  been  resur- 
veyed  and  platted.  For  convenience  it  should  contain,  as  far 
as  practicable,  all  the  specific  allusions  to  i)articular  tracts 
found  upon  the  records,  whether  conveyances,  agreements,  re- 
leases, attachments,  sales,  lis  pendens  and  other  notices,  or 
other  instruments  afi'ecting  title,  or  mentioning  such  tracts 
or  any  part  thereof.  In  addition  all  other  instruments,  capa- 
ble of  definite  location,  tliongh  containing  no  description, 
should,  as  in  case  of  specific  instruments,  be  posted  under  the 
particular  classification  to  which  they  properly  belong.  For 
ordinary  use  six  or  eight  quire  demy  books  will  be  found  the 
most  serviceable,  the  number  of  volumes  being  regulated  by 
the  size  of  the  county,  population,  prospects,  etc.     The  books 


INDICES    AND    REFERENCES. 


73 


slionld  be  ruled  across  with  heavy  and  faint  blue  lines,  and 
the  page  divided  with  red  lines  in  the  following  proportions: 

Sec.  16—1—23. 


200- 


Ino.  Doe  &  wl 


Ricb'd  Roe 


N  W  ^  N  W  J 


M. 


1-16-78 

2-10-78 


1—25 


A-515 


The  foregoing  sample  page  would  be  posted  from  the  origi- 
nal entries  as  follows:  the  left  hand  column  is  tilled  by  the 
document  number,  the  second  column  by  the  grantor's  name, 
the  third  by  the  grantee's,  while  the  wide  space  next  follow- 
ing is  devoted  to  a  brief  description  of  the  property.  The 
nature  of  the  instrument,  indicated  by  the  initial  letter  or 
some  abbreviation,  occupies  the  next  space, -while  in  the  two 
succeeding  columns  much  information  may  be  condensed  into 
little  space  by  writing  on  both  the  heavy  and  faint  lines. 
Thus,  in  the  first  column  the  upper  line  is  intended  to  repre- 
sent the  date  of  the  instrument;  as,  first  month,  sixteentli 
day,  1878,  the  lower  line  in  like  manner  representing  the 
date  of  record.  So,  in  the  last  column,  tlie  upper  line  Avill 
represent  the  book  and  page  of  theentrj',  which  if  written  in 
extenso  will  be  the  only  reference  needed  on  making  the  chain, 
the  etitry  supplying  all  the  desired  information  that  could  be 
afibrded  by  the  record;  the  ktwer  line  of  this  column  repre- 
sents the  book  and  page  of  the  record.  Should  the  examiner 
so  desire,  another  column  may  be  added,  in  which  are  noted 
"  remai-ks,"  notes  of  reference,  satisfactions,  re- records,  etc., 
all  of  whicli  will  be  found  to  greatly  enhance  the  value  of 
the  volume.  In  posting  these  books,  economy  of  space 
should  always  be  kej)t  in  view,  otherwise  they  will  soon  be- 
come numerous  and  cumbersome,  greatly  retarding  the  ex- 
aminer's labors.  The  faint  lines  should  always  be  used  in 
case  of  long  descriptions,  and  the  poster  is  allowed  consider- 
able latitude  in  the  matter  of  abbreviation  and  condensation. 
So  long  as  the  identity  of  the  pai'cel  is  preserved,  the  de- 
scription used  in  this  bouk  is  of  little   moment,  for  it   will  be 


74  ABSTRACTS    OF   TITLE. 

remembered  tins  is  but  an  index  to  tbe  place  wbere  tlie  full 
and  orii^inal  description  may  be  found.  For  example:  A 
description  commences  at  the  northeast  corner  of  the  north- 
east quai'tcr  of  a  stated  section,  town  and  rano^e,  and  describes 
in  a  lengthy  manner,  by  metes  and  bounds,  an  irregular 
shaped  tract  which  contains  eleven  acres,  the  description  end- 
ing at  the  place  of  beginning.  It  will  save  time  and  space, 
and  be  just  as  correct  as  an  index,  to  post  the  parcel  as  '•  11 
ac.  in  N.  E.  cor.  K  E.  i " 

§  9.  Irregular  Index.  This  index  is  designed  as  a  recepta- 
cle for  all  matters,  except  judgments,  that  from  their  nature 
do  not  admit  of  specific  posting  in  the  tract  indices.  Of  this 
nature  are  general  powers  of  attorney,  unless  the  examiner 
sees  fit  to  keep  a  separate  book  for  same;  releases  and  satisfac- 
tion pieces,  which  describe  no  property  and  are  incapable  of 
definite  location;  general  confirmations,  assignments,  affida- 
vits, etc.  The  index  consists  of  two  books,  arranged  alpha- 
betically, by  grantors  and  grantees  and  is  used,  in  compiling 
the  chain,  in  exactly  the  same  manner  as  the  judgment  in- 
dices. It  is  posted  in  the  same  manner  as  the  tract  index,  ex- 
cept that  in  place  of  the  descrij)tion  of  the  property  is  noted  a 
brief  statement  of  the  subject-matter  of  the  instrument,  the 
other  details  being  the  same.  In  all  compilations  this  index 
should  be  carefully  searched  for  the  names  of  all  parties,  grant- 
or and  grantee,  who  at  any  time  during  the  period  covered  by 
the  examination  have  held  title  to  the  land  in  question,  or 
possessed  any  equities  therein.  In  cases  of  variances  in  the  or- 
thography of  names,  it  is  advisable  to  post  same  both  in  tlie 
categorj^  to  which  the  spelling  of  the  name  would  properly 
consign  it,  and  in  the  section  where  the  examiner  has  reason 
to  believe  it  riglitfuUy  belongs.  Thus,  should  the  name  as 
found  on  the  records  be  Lauson  and  the  examiner  from  other 
indicia  have  reason  to  believe  the  name  is  Slauson,  the  two 
names  to  insure  accuracy  should  be  noted  on  the  index,  the 
latter  being  identified,  by  any  system  of  marks  the  examiner 
may  adopt,  to  show  that  it  is  a  substitute. 

§  10.  Tax  Index.  With  the  exception  of  sales  for  taxes, 
everything  capable  of  such  treatment  should  be  posted  in  the 


IXDICES    AND    REFERENCES. 


(O 


traet  index.  Tax  sales,  however,  can  best  be  bandied  in  a 
separate  volume,  and  as  a  lar<^e  portion  are  followed  by  re- 
demption, much  dead  matter  will  thus  be  kept  off  those  books. 
This  index  is  posted  after  everj^  sale,  and  should  be  arrani^ed 
to  show:  the  description  of  the  property;  the  name  of  the  per- 
son against  whom  the  tax  was  assessed;  the  nature  of  the  tax 
for  which  the  sale  was  made,  as  general,  special,  state,  county, 
municipal,  special  assessment,  and  the  like;  the  amount  of 
the  tax;  the  year  for  which  it  was  levied;  the  date  of  sale; 
and  if  desired,  the  name  of  the  purchaser.  On  the  right  hand 
margin  of  the  page  a  space  should  be  left,  on  which  may  be 
entered  the  fact  of  redemption.  At  the  top  of  the  page  the 
section  or  subdivision  is  written,  as  in  the  tract  index.  In 
compiling  the  chain  of  title  this  book  is  consulted  in  the  same 
manner  as  the  tract  index,  and  a  list  of  all  the  sales,  forfeit- 
ures, etc.,  taken  off,  which  is  then  sent  to  the  office  of  the 
custodian  of  the  tax  records  and  verified  by  his  books.  All 
the  redemptions  are  stricken  from  the  chain,  and  existing  liens 
shown  as  hereafter  directed.  A  note  of  all  the  redemptions 
is  then  made  in  the  index;  thus, 

Sec.  10—12—14. 


S  W  1^  s  W  1^ 


Thos.  Higeins 


Gen 


1880 


Apr 

10 
1881 


10,  50 


S.  R.  Smith 


Red.  June  1,  81 


Should  circumstances  permit  the  examiner  to  procure  a 
daily  list  of  redemptions,  this  index  would  be  much  more  serv- 
iceable, and  considerable  labor  be  saved  in  preparing  the  ab- 
stract. Such  a  course,  however,  is  rarely  practicable,  and  the 
method  above  indicated  is  that  ordinarily  followed. 

§  11.  Judgment  Index.  The  judgment  index  consists  sim- 
ply of  an  alphabetically  arranged  index  of  names,  taken  from 
the  court  files  every  day,  and  shows:  the  name  of  the  judg- 
ment debtor,  the  plaintiff  or  judgment  creditor,  the  court  in 
which  the  judgment  is  docketed,  the  general  number  of  the 
case,  the  time  of  rendition  or  docketing,  the  amount  of  the 


76 


ABSTRACTS    OF    TITLE. 


judgment  and  costs,  and  the  fact  of  satisfaction  in  the  same 
inamier  as  tax  liens.  Tn  practice  this  book  is  used  the  same 
as  the  tax  index.  The  following  will  be  found  a  suitable  foi-m 
for  the  page: 


201 


-mith,  John  R 


Union  Towing  Co. 


Mar 

Id 

1881 


150.00    15  00 


Sat.  Mar.  15,  ISSi 


If  desired,  a  further  column  ma)'  be  added,  showing  the 
nature  of  tiie  suit.  This  book  is  used  only  for  money  judg- 
ments, or  such  as  create  a  lien  on  land.  Decrees  in  chancery, 
or  actions  and  proceedings  involving  directly  the  title  to  real 
estate  are  posted  in  the  general  tract  indices. 

§  12.  Decrees  and  Sales  in  Chancery.  JN^o  separate  index 
should  be  kept  for  proceedings  in  court  of  an  equitable  nature. 
For  pending  suits  a  note  of  the  lis  pendens  or  attachment  as 
found  in  the  registry  of  deeds  is  sufficient.  For  decrees,  or- 
ders or  sales  made  in  pursuance  thereof  an  original  entry 
should  be  kept  as  in  case  of  deeds,  etc.,  showing  as  fully  as 
may  be  the  entire  transaction,  and  posted  as  other  instruments 
are  in  the  general  tract  index.  These  proceedings  have  all 
the  stability  of  conveyances  between  individuals,  and  form 
permanent  muniments  of  title.  Execution  sales  may  be  kept 
in  like  manner. 

§  13.  Laying  out  the  Books.  Considerable  judgment  must 
be  exercised  in  laying  out  a  set  of  abstract  books,  not  so  much 
for  economy  in  material,  though  this  may  be  an  object,  but  for 
economy  of  time  in  their  use,  which  is  a  very  important  con- 
sideration. The  aim  of  the  examiner  should  be  to  have  his 
indices  preserve  such  a  correspondence  in  all  their  parts,  that 
posting  shall  cease  in  every  division  of  the  work  at  about  the 
same  time.  To  attain  this  end,  where  a  section  or  subdivision 
is  thickly  populated  and  sales  are  frequent,  devote  considerable 
space  and,  if  necessary  for  greater  convenience,  index  same  bv 
half  or  quarter  sections  instead  of  sections.  In  less  active 
localities  index  b}'  sections  and  devote  less  space.  In  a  new 
county  this  question  must  be  determined  by  geographical  con- 
siderations, present  location  of  towns,  railroads,  water  ways, 


INDICES   AND    REFERENCES. 


77 


etc.  In  older  places  the  experience  of  the  past  will  nsnallj 
furnish  a  safe  guide  in  this  respect  for  the  future.  Alphabet- 
iciJ  indexes  are  laid  out  on  technical  and  arbitrary  princi])le.s 
based  upon  experience  in  the  distribution  of  initial  letters  in 
names.  Thus  it  is  found  that  certain  letters  occur  much  more 
frequently  than  oth.ers  in  the  commencement  of  names,  a!id 
space  must  be  given  accordingly.  The  following  table  will  be 
found  a  safe  guide: 

SCALE  FOR    INDEXING  BOOKS. 


> 
e  ^ 

O 
•9 

e 

9 

e 

o 

e 

e 

e 

% 

1! 

9 

9 

?f 
"9 
28 
17 
15 

w 
10 
30 
18 
16 

9 
M. 

10 
32 
1. 
17 

9 
9 

11 

34 
20 

18 

n 

35 
21 

18 

Vc 

3 
2. 

if. 
11 

18 
20 
33 

12 
38 
23 
21 
1. 
19 
21 
34 

9 

A 

1 
2 

1 

4 
3 

2 
6 
4 

3 

7 
5 

3 
10 

6 

3 
12 

7 

4 
13 

8 

5 

15 

9 

5 
17 
10 

9 

18 
11 
10 

6 
20 
12 
11 

6 

21 
13 
12 

7 
23 
14 
13 

8 

15 
13 

8 
.6 
16 
14 

12 

B 

i) 

40 

C 

24 

D 

'I 

3 

4 

5 

5 

6 

8 

8 

22 

E 

-^ 

1 

1 
1 

1 
3 
3 

2 
3 
3 

2 

4 
4 

3 
5 

4 
6 
6 

4 

7 
7 

4 

8 

5 
8 
9 

6 

9 

10 

6 

10 
11 

7 
11 
11 

7 

IT 

12 

7 

12 
13 

8 
13 
14 

8 
13 
15 

8 
14 
16 

9 
15 
16 
29 

10 
IH 
17 
30 

10 
17 
18 
32 

12. 

F 

20 

G 

22 

H 

•6 

4 

6 

7 

9 

10 

12 

14 

14 

16 

18 

19 

21 

23 

2. 

27 

28 

36 

I 

1 

1 

2 

2 

2 

3 

3 

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§  14.     Resume.     The  foregoing    brief  sketch,  it   is  hoped, 
will  furnish  sutticient  hints  to  enable  one  with    no  previous 


<0  ABSTRACTS    OF   TITLE. 

cx]")orieiice  to  lay  out  and  keep  a  set  of  books  in  a  methodical 
and  intfelliorible  manner.  Many  things  will  suggest  themselves 
to  the  exatninei',  arising  from  local  causes,  while  his  own  in- 
genuity will  enable  him  to  improve  on  the  forms  here  given. 
Having  then  started  the  books,  the  next  thing  in  order  is  to 
prejiare  an  abstract  from  them,  and  this  will  form  the  subject 
of  the  next  chapter. 


CHAPTER   VII. 


COMPILING  THE  ABSTRACT. 


§  1. 

The  extent  of  the 

seal 

•ch. 

§7- 

FuUness  of  narrat'on. 

2. 

Same. 

8. 

Examiner's  notes. 

o. 

Making-  the  chain. 

9. 

Abbreviations. 

4. 

Formal  parts. 

10. 

Letter  press  copies. 

"i. 

The  caption. 

11. 

Concluding  certificate, 

6.     Arrangement  of  the  abstract. 

§  1.  The  Extent  of  the  Search.  Examinations  of  title  in 
the  United  States,  wliicli  are  usually  prepared  by  professional 
examiners,  do  not,  as  a  rule,  disclose,  except  inferontially,  aiiy 
matter  or  thinj^  affecting  title  save  what  appears  of  record,  and 
their  searches  are  mainly  restricted  to  the  ])nl)lic  records  of 
the  county.  Ordinarily  this  is  sufficient,  and  a  careful  search 
will  reveal  ail  that  is  necessary  to  a  proper  estimate  of  the 
title,  and  fully  protect  intending  purchasers.  In  England, 
where  the  abstract  is  prepared  from  original  documents,  it  is 
customary  to  give  a  far  wider  range  to  the  examiner's  eflbrts 
and  to  include  not  only  the  material  parts  of  deeds,  wills,  etc., 
but  of  records  and  private  acts  of  Parliament,  and  even  of  pub- 
lic acts  passed  for  private  purposes,  which  might  in  any  wise 
implicate  or  affect  the  title;  and  to  these  are  added  such  facts 
as  fill  up  the  interval  of  title,  as  descents,  deaths,  marriages, 
births,  burials,  and  other  circumstances  generall}'^  called  mat- 
ters in  pais, ^  and  when  it  is  necessary  to  prove  a  pedigree,  as 
where  a  descent  occurs  in  the  course  of  the  abstract,  in  the 
absence  of  better  evidence,  lie  has  recourse  to  wills  of  rela- 
tives, extracts  from  parish  books,  from  family  bibles,  and  even 
from  tombstones."  The  system  of  registration,  of  probate  pro- 
ceedings, and  of  judicial  inquiry  and  determination,  and  the 

'  1  Prest.  on  Abstracts,  43.  ^  Brown's  Law  Diet.  5. 

(TO) 


80  ABSTRACTS   OF    TITLE. 

effect  of  sucli,  renders  tlie  En^^lisli  examiner's  methods  useless 
to  a  large  extent  in  the  United  States,  yet  it  can  not  be  denied 
that  opportunities  frequently  occur  for  a  judicious  breacli  of 
the  conventional  observance  of  record  evidence  only,  and  for 
the  introduction  of  what  may  properly  be  called  matters  in 
pais. 

§  2-  The  same,  continued.  The  examination  upon  its 
face  purports  to  show  the  course  of  title  from  a  definite  to  an- 
other definite  date,  and  the  fair  and  reasonable  im])ort  of  the 
iindertakins:  i»,  to  make  a  full  and  true  search  relative  to  the 
title  during  that  period  and  to  note  on  the  abstract  every  trans- 
fer, etc.,  affecting  the  same,  actually  made  and  entered  of  rec- 
ord between  those  dates.  It  imposes  no  duty  or  obligation  to 
inquire  into  the  existence  of  any  judgments  entered,  or  con- 
veyances recorded,  prior  to  the  date  mentioned  as  the  com- 
mencement of  the  search,  neither  is  the  examiner  required  to 
ascertain  or  certify  as  to  any  lien  arising  under  any  such  ])rior 
judgment,  though  the  same  may  have  first  attached  and  be- 
come operative  after  that  time  by  reason  of  tiie  fact  that  the 
judgmenf  debtor  then  first  acquired  title  to  the  premises; 
nor  is  he  bound  to  inquire  or  state  whether  the  title  vested  in 
any  grantee,  during  the  period  covered  by  the  examination, 
was  affected  by  any  prior  conveyance  or  any  estoppel  growing 
out  of  any  covenants  therein.^  It  must  be  obvious,  however, 
that  an  examination  in  strict  conformity  to  the  foregoing  will 
in  many  instances  defeat  the  very  object  of  the  search,  and 
hence  it  is  customary  to  show  subsisting  tax  and  judgment 
liens,  even  though  accruing  prior  to  the  date  of  the  commence- 
ment of  the  examination,  and,  except  in  case  of  continuations, 
an  abstract  deficient  in  this  respect  should  be  rejected  by  counsel 
as  no  safe  opinion  can  be  predicated  upon  it.  In  all  cases  where 
the  lien  first  attaches  during  the  period  covered  by  the  exam- 
ination it  should  be  shown,  whatever  may  have  been  its  incep- 
tion, and  any  departure  from  this  rule  is  to  rob  the  abstract  of 
its  character  of  a  trustworthy  guide,  and  reduce,  if  not  vitiate, 

»  Wakefield  v.  Uhowen,  26  Minn.  379j  Dodd  i?. Williams,  3  Mo.  App.  278. 


COMPILING    THE     ABSTRACT.  81 

its  value  as  an  evidence  of  the  true  state  of  tlie  title.  In 
many  localities  it  is  customary  to  dispense  with  a  formal  ab- 
stract, and  in  its  stead  the  examiner  merely  "  certifies  the  title," 
as  beini;  ijood,  bad  or  doubtful,  in  an  individual  named,  basin^^ 
his  certificate  upon  Iiis  personal  examination  of  the  records. 
Again,  while  the  examiner  may  present  a  synopsis  of  the 
deeds,  etc.,  it  is  simply  for  the  purpose  of  showinir,  like  the 
En<j;lish  abstract,  the  present  title  of  some  specified  person, 
the  chain  commencing  at  some  given  point  as  the  root.  In  a 
case  of  this  kind  unusual  care  is  required,  lest  a  prior  convey- 
ance operating  by  way  of  estoppel,  may  not  defeat  the  title 
shown.  It  is  customary  in  an  examination  similar  to  the  one 
under  consideration,  to  commence  with  a  deed  showing  a  good 
title  in  vendor  or  his  grantor,  and  thence  continue  down  to  the 
date  of  the  certificate.  There  is  not  wanting  authority  to  sup- 
port an  examination  of  this  character,  and  it  has  been  held  that 
a  deed  recorded  before  the  grantor  has  any  record  title  may 
be  safely  disregarded  in  examination  of  title,  under  the  system 
of  registration  and  notice  adopted  in  the  different  States  of 
the  Union;  that  such  a  deed  would  not  be  constructive  notice 
to  any  innocent  purchaser;^  and  further,  that  a  purchaser  find- 
ing a  good  title  of  record,  is  not  expected  to  look  behind  it.' 
The  rule,  however,  is  unsafe  and  does  not  prevail  generally,' 
and  counsel  before  passing  on  an  examination  purporting  to 
show  no  more  than  above  stated,  should  have  satisfactory  as- 
surance that  no  prior  deeds  exist  of  record,  or  his  opinion 
should  indicate  the  possible  defects  of  title  resulting  there- 
from. 

§  3.  Making  the  Chain.  Before  commencing  the  formal 
abstract  a  preliminary  sketch  should  first  be  made  from  all  the 
indices.  This  sketch  called  the  "chain  "  is  simply  a  series  of 
brief  notes  of  all  conveyances,  incuinbrances  and  liens  affect- 
ing the  propertj''  under  consideration,  as  shown  by  the  tract 
index,  and  where  the  original  entry  is  meager,  the  examiner 
uses  these  references  in  making  full  abstracts  of  the  instru- 
ments from  the  record-.     It  also  shows  what  instruments  are 

' Dodd V.Williams,  ?,  Mo.  App.  "-'TS.  ^  See  "  Estoppel,"  "  Notice"   ajid 

*  State  V.  I3radiab,  14  Mass.  "JO  J.  "  Registration.'' 

6 


82  ABSTKACTS    OF    TITLE. 

associated  with  tlie  names  of  those  wliom  the  tract  index  in- 
vests with  title,  tliat  appear  upon  the  irregular  index;  the 
names  of  all  who  at  any  time  have  held  title  which  are  found 
upon  the  judgment  index;  and  all  tax  sales,  or  forfeitures  of 
the  premises  as  shown  by  the  tax  index.  These  latter  are 
then  verified  by  comparison  with  the  records,  and  all  satisfac- 
tions or  redemptions  stricken  from  the  sketch.  The  instru- 
ments, proceedings,  etc.,  are  then  numbered  and  arranged  in 
the  order  in  which  the  abstract  should  be  written,  and  fur- 
nish a  reference  guide  for  this  portion  of  tlie  work. 

§  4.  Formal  Parts.  The  abstract  should  be  prepared  in  a 
neat  and  orderly  manner,  and  so  disposed  as  to  facilitate  the 
labor  of  counsel  in  passing  on  the  title.  A  formal  caption 
should  apprise  the  reader  at  the  outset  of  the  subject  of  the 
examination,  while  the  difterent  searches  should  be  arranged 
under  classiiied  heads,  and  for  purposes  of  convenient  reference 
the  various  conveyances  and  statements  should  be  numbered 
consecutively  from  the  beginning.  The  result  of  the  search 
should  be  recapitulated  at  the  conclusion  by  a  certificate  cover- 
ing all  the  essential  features  of  the  examination.  The  formal 
parts  should  be  brief,  yet  explicit,  and  drawn  with  great  care, 
particularly  the  examiner's  certificate,  for  it  is  this  which  im- 
parts to  the  absti-act  its  value  as  evidence. 

§  5.  The  Caption.  The  object  of  the  caption  is  to  definitely 
describe  the  subject  of  the  examination.  It  is  the  practice  of 
Eastern  abstract  makers,  following  the  English  precedents,  to 
insert  here  the  name  of  the  person  for  whom  the  search  is 
made,  and  frequently,  to  describe  the  abstract  itself  as  the  ex- 
emplification of  the  title  of  some  particular  individual.^  Bnt 
this  is  usurping  the  province  of  tlie  examining  counsel,  who 
alone  should  say  where  and  in  whom  the  title  rests,  and  that 
only  after  a  careful  and  diligent  inquiry  into  all  the  questions 
raised  by  the  abstract,  directly  and  inferentially.  The  work 
of  the  examiner  is  to  present  to  counsel  all  that  ai^pears  of 
record  concerning  a  specified  tract  of  land;  no  more.  The 
counsel    must    say   in   M'honi,    under  the  application  of  legal 

*  See  Curwen  on  Abstracts,  33;  Willard  on  Conveyancing,  551. 


COMPILING   THE   ABSTRACT.  83 

principles,  the  title  rests.  The  caption,  therefore,  should  con- 
sist of  a  full  description  of  the  parcel  or  parcels  of  land  under 
examination,  and  the  time  from  which  the  search  is  made. 
The  following  is  the  form  of  an  ordinary  caption; 


Examination  of  Title 

TO 

Lot  Five  [p)  of  Bloch  Four  (4)  of  BoncVs  Suhdivision  of 
the  north  east  quarter  of  Section  Twenty  Three  {23) 
Town  Thirty  Seven  {37)  North,  Range  Thirteen  {13) 
East  of  the  Third  PrlncijMl  Meridian^'  except  the 
South  one  hundred  acres,  and  also  one  acre  in  the  North 
West  corner  of  East  one  half  {^)  of  said  quarter  sec- 
tion, deeded  to  the  School  Commissioners. 


Commencing  this  examination  Oct.  9,  1871. 


Should  the  examination  be  a  continuation  of  a  former 
search,  the  words  "continuation  of"  maybe  placed  at  the 
beginning  of  the  caption,  preceding  the  word  "examination," 
and  the  following  substituted  for  the  time  clause: 

Last  examination  made  hy  us  dated  March  3,  1879. 
or,  should  the  search  have  been  made  by  a  different  examiner; 

Last  examination  made  hy  Handy,  Simmons  (&  Co.y  dated 
June  7,  1880. 

It  sometimes  happens  that  the  client  only  desires  a  search 
from  some  particular  time,  and  selects  some  particular  instru- 
ment as  the  basis  of  his  title.  In  this  case,  the  instrument 
selected  should  form  the  initial  number  of  the  abstract,  and 
the  time  clause  should  read  substantially  as  follows: 


84  ABSTRACTS    OF    TITLE. 

IVe  a.'isume,  hy  direction,  tliat  Jolin  Smith  acquired  a  good 
title  to  the  premises  described  in  the  caption  hereto.,  on  the 
10th  day  of  April .^  1873,  hy  the  instrument  shown  as  number 
one  of  this  examination. 

Frequently  the  examiner  will  be  called  upon  for  partial,  or 
special  examinations,  either  of  land  or  concerning  individuals, 
in  which  case  the  caption  should  explicitly  state  all  the  points 
covered  by  the  examination,  and  if  necessary  for  greater  cer- 
tainty, negative  such  as  are  not;  as 

Special  Examination 

for 

Judgments  and  Pending  Suits  i?i  the  Circuit  and  Supe- 
rior Courts  of  Cook  County,  Illinois,  against  George  P.  Will- 
iams and  John  R.  Smith.  Judgments  against  John  Smith 
disregarded. 

Examinations  for  special  conveyances,  taxes,  etc.,  should  be 
treated  in  the  same  general  manner.  Where  the  examination 
is  confined  to  the  elucidation  of  a  single  issue  it  becomes  more 
properly  an  abstract  of  the  particular  point  under  considera- 
tion, and  is  so  denominated;  as, 

Abstract 

of 

A  Tax  Title  to  in-lot  twenty  four,  of  the  original  'flat  of 
the  village  of  Edgerton,  Green  county,  Wisconsin,  acquired 
under  and  hy  vii^tue  of  a  sale  made  May  10,  1879,  for  the 
taxes  of  1878. 

§  6.  Arrangement  of  the  Abstract.  The  different  convey- 
ances and  stages  of  title  are  usually  shown  in  chronological 
order  so  as  to  present  as  far  as  possible  a  connected  chain,  and 
numbered  seriatim  from  the  beginning.  Many  examiners 
show  the  deeds  and  grants  collectively,  while  the  mortgages 


COMriLING   THE    ABSTRACT.  85 

and  liens  are  grouped  together  in  the  same  manner  under  a 
classified  head.  This  arrangement,  though  widely  used,  is 
inconvenient  and  frequently  distracting  to  counsel.  The 
liens,  when  connecting  title,  and  incumbrances  should  be 
set  forth  in  regular  chronological  order  in  conjunction  with 
other  instruments,  and  releases  or  discharges,  should  im- 
mediately follow  the  incumbrance  or  lien  which  they  pur- 
port to  affect  irrespective  of  the  time  they  bear  date.  The 
aim  of  the  examiner  should  be  to  present,  so  far  as  may 
be,  the  course  of  title  in  unbroken  sequence  through  what- 
ever forms  or  instrumentalities  it  may  pass.  Judgments 
(against  the  person),  taxes  and  tax  sales,  may  be  shown  after 
the  course  of  title  has  been  traced,  in  the  shape  of  appendices 
and  under  appropriate  heads.  Decrees,  judgments,  orders  af- 
fecting the  land  and  tax  deeds,  of  course  appear  in  regular 
order  in  the  body  of  the  abstract.  Official  deeds,  resulting 
from  execution  or  judicial  sales,  should  be  preceded  in  the 
former  case  by  the  judgment,  in  the  latter  by  the  special  pro- 
ceedings and  decrees  upon  which  they  are  founded. 

§  7.  Fullness  of  Narration.  From  what  has  been  said,  it 
will  appear  that  a  full  and  complete  narration  of  every  in- 
strument, proceeding  or  act,  shown  in  the  abstract,  is  neces- 
sary to  a  complete  and  perfect  examination.  Many  things  of 
no  seeming  moment  to  the  examiner,  may  to  the  trained  eye 
of  counsel,  be  a  circumstance  of  vital  importance.  While 
the  abstract  is  not  intended  to  be  a  copy  of  what  is  shown,  it 
should  yet  be  sufficient  to  impart  all  the  information  that 
might  be  obtained  from  a  perusal  of  the  originals.  It  is  not 
necessary,  save  in  exceptional  cases,  that  it  should  be  a  literal 
transcript  of  every  point  or  matter  deemed  material  or  essen- 
tial, for,  on  the  contrary,  the  majority  of  these  matters  will 
be  more  clearly  and  pertinently  presented,  by  a  brief  and 
succinct  statement  that  shall  fully  cover  the  particular  point, 
divested  of  its  redundancy  and  unnecessary  verbiage.  It  is 
the  object  of  the  abstract  to  economize  time,  and  enable  the 
reader  to  survey  the  entire  course  of  title  comparatively  at  a 
glance.  Hence,  long  and  technical  provisions,  should,  when- 
ever practicable,  be  digested  so  as  to  show  their  pith  and  sub- 


8C)  ABSTRACTS    OF    TITLE. 

stance,  which  in  many  instances  may  be  done  without  in  any 
manner  im]:»airing  their  significance.  The  faculty  ot"  conden- 
sation should  be  cultivated  by  all  who  would  asj)ire  to  ex- 
cellence in  the  preparation  of  abstracts,  for  nothing  more 
distinguishes  the  accomplished  and  expert  examiner,  and  the 
work  is  always  duly  recognized  and  appreciated  by  counsel. 
These  remarks,  however,  apply  mainly  to  the  general  and  not 
to  the  special  incidents  of  instruments,  for  these  latter,  as  a 
rule,  can  best  be  presented  in  the  language  of  the  originals, 
and  to  avoid  error  or  omission  should  ordinarily  be  so 
shown, 

§  8.  Examiner's  Notes.  It  is  the  custom  of  many  exam- 
iners to  freely  intersperse  through  the  examination  their  own 
comments  and  observations  relative  to  matters  therein  stated. 
When  properly  inserted  these  notes  are  of  immense  advantage 
in  arriving  at  a  proper  estimate  of  the  instruments  shown, 
and  in  determining  their  character  and  the  degree  of  impor- 
tance to  be  attached  to*' them.  From  his  ];)eculiar  position, 
knowledor-e  of  the  records,  and  control  of  indices  and  refer- 
ences,  the  examiner  is  frequently  in  possession  of  inforniation, 
which,  though  not  strictly  essential  to  the  abstract,  and  in  a 
certain  sense  aliunde,  is  yet  a  valuable  contribution  and  may 
obviate  many  perplexing  questions  that  might  otherwise  arise 
on  its  perusal  by  counsel.  This  information  should  be  ap- 
pended in  the  shape  of  explanatory  notes.  They  should  be 
brief,  concise,  and  confined  strictly  to  a  statement  of  facts. 
Queries  (save  in  rare  instaTices),  opinions  and  desultory  sug- 
gestions only  serve  to  confuse  and  distract.  When  alluding 
to  any  particular  instrument  or  proceeding,  they  should,  when 
practicable,  immediately  follow  the  particular  conveyance  re- 
ferred to,  or  should  this  be  undesirable,  may  be  placed  at  the 
end  of  the  abstract,  immediately  before  the  certificate,  b}'-  way 
of  appendix.  It  is  not  a  good  plan  to  encumber  the  abstract 
with  a  profusion  of  notes,  yet  in  no  case  where  the  matter 
stated  is  important,  or  necessary  to  a  better  undei'standing  of 
what  has  preceded  or  may  follow,  should  they  be  omitted,  and 
when  doubtful  of  the  propriety  of  their  insertion,  it  is  better 
to  err  on  the  side  of  safety,  even  at  the  cost  of  being  prolix. 


COMPILING    THE    ABSTRACT.  87 

§  9.  Abbreviations.  Ill  piej^arini^  his  notes  and  arran:^- 
ing  Ill's  books,  the  examiner  will  find  his  hibors  greatlj''  accel- 
erated by  the  use  of  abbreviations.  These  may  include  not 
only  the  commonly  accepted  initials  for  the  points  of  the 
compass,  diti'erent  classes  of  conveyances,  etc.,  but  all  such 
abbreviated  forms  or  contractions  as  to  himself  may  have  a 
definite  meaning.  In  the  abstract,  however,  everything 
should  be  written  out  in  full,  for  it  can  not  be  known  into 
whose  hands  it  may  come,  and  arbitrary  forms  and  abbrevia- 
tions that  to  the  examiner  appear  extremely  lucid  may  cause 
much  annoyance  and  inconvenience  both  to  counsel  and  non- 
professional readers.  The  examiner  should  never  attempt  to 
supply  the  deficiencies  of  the  conveyancer  by  writing  out  in 
the  abstract  his  abbreviations  in  the  deed,  but  whenever  such 
occur  the  better  way  is  to  make  a  literal  transcription  of  the 
abbreviated  words  or  passages,  and  certify  same  with  quota- 
tion marks,  thus:  "Sect.  14,  T.  39,  Range  13  E."  The  ques- 
tion of  interpretation  will  then  rest  where  it  rightfully  be- 
longs— with  counsel  who  is  to  pass  on  the  title.  A  deed  is 
not  invalid  because  of  the  description  of  the  lands  being  in 
figures  or  well  understood  abbreviations,'  but  abstracts  which 
are  unintelligible  without  the  aid  of  some  proof  to  exphiin  the 
meaning  of  abbreviations  and  initials  used  in  them,  when 
permitted  to  be  used  as  evidence,  are  insuflicieut  in  themselves 
to  establish  title.* 

§  10.  Letter  Press  Copies.  Ko  abstract  or  examination 
should  be  permitted  to  leave  the  maker's  hands  until  a  dupli- 
cate letter  press  copy,  or  its  equivalent,  has  first  been  ob- 
tained. The  examiner  should  always  have  in  his  own  posses- 
sion the  verification  of  his  work  as  a  matter  of  self-protection, 
while  in  case  the  volume  of  business  passing  through  the 
offices  of  registration  is  such  as  to  preclude  making  full 
minutes  in  the  first  instance,  the  copies  thus  obtained  will 
supply  the  deficiency,  and  be  available  for  future  examina- 
tions of  the  same  property,  without  the  labor  of  again  refer- 
ring to  the  records.     This  may  be  accomplished  by  noting  on 

1  Harrington  v.  Fish,  10  Mich.  415.  ^  \Yocks  v.  Dowing,  30  Mich.  4. 


88  ABSTRACTS    OF   TITLE. 

the  tract  index  opposite  tlie  reference  of  the  instrument  in 
question  the  vohime  and  page  of  the  copy  book  on  which  the 
full  abstract  is  preserved. 

§  11.  Concluding  Certificate.  The  result  of  the  examiner's 
labors  sliould  be  summed  up  in  conclusion,  by  a  brief  recapitu- 
latory and  explanatory  certificate,  embodying  the  essential 
features  of  the  search.  Its  extent  is  optional  with  the  ex- 
aminer, but  it  should,  to  give  stability  to  the  abstract,  cover 
his  searches  in  the  offices  of  registration,  the  courts,  and  de- 
positories of  records  relative  to  taxation,  these  three  sources  of 
information  furnishing  nearly  all  the  evidence  required  in 
passing  on  the  sufficiency  of  the  title.  It  sliould  be  certain  in 
its  statements,  leaving  nothing  to  implication,  and  contain  no 
more  than  is  developed  by  actual  investigation.  If  the  exam- 
ination is  made  from  the  records  it  should  so  state,  enumer- 
ating the  different  classes  examined,  or  describing  the  offices 
or  depositaries  from  which  the  information  was  obtained,  but 
where  it  is  made  from  indices,  ke|>t  by  the  examiner,  it  is 
usual  to  certify  from  such  indices,^  which  is  a  much  safer 
plan  than  to  certify  from  the  records.  It  should  be  signed  by 
the  examiner  and  dated,  such  date  being  the  date  of  the  ex- 
amination. The  annexed  form  of  certificate  will  cover  the 
points  investigated  in  an  ordinary  search: 

^  As  a  further  precaution  the  client      the    following',   taken    from    actual 
is  usually  required  to  make  a  specif-      practice,  is  an  example: 
ic  order,  stating  his  desires,  of  which 

No 

ORDER  FOR  EXAMINATION  OF  TITLE. 

CniGAGO, 188.. 

HADDOCK,  VALLETTE  &  RICKCORDS, 

Mak3  an  examination,  according  to  your  Indexes  to  the  Records  in 
Cook  County,  Illinois,  of  deeds,  judgments  and  tax  sales,  of  the  title  to  the 
following  described  land,  in  Cook  County,  Illinois: 

(Here  insert  the  description  of  the 

property.) 

(Signed. ) 

No Street. 


COMI'ILIXG    THE    ABSTEACT.  89 

We  have  examined  our  Indexes  to  records  in  Cook  county^ 
Illinois^  and  find: 

No  conveyances  of  the  premises  described  in  the  caption 
hereto,  executed  hy  any  of  the  parties  named  herein  <  s  -jrant- 
or  or  go'antee,  shown  thereby  to  have  been  recorded  in  the  Re- 
corder''s  office  of  said  Cook  county,  Illinois,  since  January 
£5,  1875,  and  prior  to  this  date,  except  as  shown  on  the  ten 
{10)  preceding  sheets. 

No  judgm.ents  rendered  in  any  court  of  record,  in  said 
Cook  county,  Illinois,  against  John  21.  Smith  since  October 
£6,  1872,^  and  prior  to  March  2,  1880,^  nor  against  William 
Thompson  since  October  25,  1872,  and  prior  to  this  date^ 
which  are  a  lien  on  said  premises  (or;  which  we  consider 
liens  on  said^  j^^'cmises). 

Note. — No  exami  nation  made  for  judgments  against  John 
Smith,  nor  against  John  Smith  with  middle  initial  other 
than   ^'Jf." 

No  taxes,  or  tax  sales,  or  forfeitures  of  said  premises,  re- 
maining unredeemed  or  uncanceled  of  record  {except  as 
nhown). 

Haddock,  Vallette  t6  Bickcords, 

Examiners. 
Chicago,  October  25,  1882. 

'  This  dfite   has  reference  only  to  given, 

the    lime    from    which    a  personal  ^This  wonld  be  the    date    when 

judgm*  nt  is  a  lien  on  real  estate  and  John  M.  Smith  disp  sed  of  the  title, 

not  to  the  commencement  of  the  ex-  and  hence,  no  examination  would  be 

amination.     In  Illinois  the  lien  only  made  concerning  him  after  that  date, 

existsfor  seven  years,  hence,  with  ref-  William    Thompson,     though  only 

erence  to  the  date  of  the  certificate,  holding  title  a  little  over  two  years, 

October  1'5,  1875,  would  have  been  a  must  yet    be  certified,    as    against 

proper  date  from   which    to  certify  judgments,  for  a  period  equal  to  the 

judgments,  but  in  a  majority  of  the  statutory  limitation,    which,   in  the 

States  the  period  is  ten  years,  which  example,  is  ten  years, 
corresponds  to  the  illustration  above 


CHAPTER  YIII. 


INCEPTION  OF  TITLE. 


§1- 

Preliminary  stages  of  title. 

§  12. 

2. 

Inceptive  measures  under  the 
U.  S.  land  laws. 

13. 

3. 

Disposal  of  the  public  domain. 

14. 

4. 

Public  land  sales. 

15. 

5. 

Private  entry  of  lands. 

16. 

6. 

Nature    of  title  conferred  by 

17. 

entry. 

18. 

7. 

What  lands  subject  to  entry. 

19. 

8. 

Pre-emption  entries. 

9. 

Nature  of  pre-emption  rights. 

20. 

10. 

Conveyances  before  entry. 

21. 

11. 

Graduation  entries. 

Homestead  entries. 

Rights  acquired  under  home- 
stead acts. 

Tree  claims. 

Location  by  military  warrant. 

Land  scrip. 

Swamp  land  grants. 

School  lands. 

Railroad  and  internal  im- 
provement grants. 

Who  may  acquire  title. 

Inceptive  measures  in  the  ab- 
stract. 


§  1.  Preliminary  stages  of  Title.  Under  the  land*  system 
of  the  United  States,  there  are  a  number  of  preliminary  or  in- 
ceptive stages  of  title  before  its  iinal  divesture  from  the  gov- 
ernment and  consummation  in  the  purcliaser.  They  arise  from 
the  provisions  of  the  various  acts  of  Congress  in  furtherance 
of  the  development  of  the  country,  and  their  recital  forms,  or 
should  form,  the  initial  statements  of  the  abstract,  whenever 
the  examination  purports  to  show  a  connected  chain  of  title 
from  its  source,  the  general  government.  Where  title,  as  in 
the  East,  is  derived  directly  from  the  State  as  the  original  pro- 
prietor, these  stages,  of  course,  do  not  appear,  nor  where  the 
title  is  deduced  from  ante- revolutionary  governments.  Titles 
derived  from  foreign  powers  prior  to  the  acquisition  of  the 
soil  by  tlie  United  States,  are  respected  and  protected,  but 
should  be  confirmed  when  inchoate,  by  special  act  or  in  con- 
formity to  general  laws  on  that  subject,'  the    title  in   such 

1  Un-ted  States  v.  King,  3  How.       U.  S.  (7  Otto)  204. 
773j  McMicken  v.  United  States,  97 

(90) 


INCEPTION    OF    TITLE.  91 

cases  diitin:^  from  the  confirmation,  though  relating  back  to  the 
time  of  the  cession  of  the  territory  to  the  government/  or  to 
the  original  grnnt.^ 

§  2.  Inceptive  measures  under  the  U.  S.  land  laws.  The 
public  lands  are  sold  only  by  legal  subdivisions,  made  in  con- 
formitv  with  the  government  system  of  surveys,  and  title  is 
acquired  by  purchase  at  publicsale;  by  ordinary  "private  en- 
try;" and  b}^  virtue  of  the  special  enactments  of  Congress 
variously  known  as  the  pre-emption,  homestead  acts,  etc. 
These  laws  and  regulations  for  the  disposal  of  the  public  do- 
main a))ply  only  to  individuals  wlio  take  direct  from  govern- 
ment. Congress  has  also  at  different  times  by  special  legisla- 
tion granted  to  the  States,  or  certain  of  them,  a  portion  of  the 
public  lands,  to  aid  in  the  construction  of  great  internal  im- 
provements; to  endow  schools  and  encourage  education;  and 
for  other  specific  purposes.  These  various  measures,  for  the 
most  part,  are  inceptive  and  initiatory.  Though  creating  vest- 
ed interests,  and  granting  equitable  rights,"  the  legal  title  still 
remains  in  the  original  grantor,*  to  pass  and  become  absolute 
in  the  grantee,  on  the  performance  of  prescribed  conditions 
or  in  due  course  of  law.  A  brief  review  of  the  preliminary 
steps  to  acquire  title  will  form  the  subject  of  the  succeeding 
paragraphs. 

§  3.  Disposal  of  the  Public  Lands.  The  public  lands  of  the 
United  States  are  uniUu-nily  brought  into  market  in  pur- 
suance of  a  system  which  originated  in  the  year  1796  and  was 
perfected  about  the  year  1820.^  They  are  divided  into  two 
classes,  designated  resi)ectively,  the  minimum  at  $1.25  per 
acre,  and  the  double  iniu/imum  at  $2.50  per  acre,  and  may  be 
purchased  (in  legal  subdivisions)  in  tracts  of  from  40  to  040 
acres,  or  in  larger  bodies  if  the  same  can  be  found  vacant. 
In  cases  of  public  sale  or  private  entry  the  law  requires  the 
price  to  be   paid  in  cash  at   the  ti;ne  of   purchase.'     For  a 

^TOpinions  Atty.  Gen.  60G;  3  do.  Hayvvarcl    v.    Ormsbee,  11    Wis.  3; 

354.  Wilcox  V.  Jackson,  13  Pet.  -.98;  3 

2  Stark  V.  Mather,  1  Walker  (Miss.),  Opinions  Atty.  Gen.  91. 

181.  ^  Chatard  v.  Pope,  12  Wheat.  586. 

8  Stark  V.  Starrs.  6  Wall.  402.  «  Instructions  8ecy.  Iiirerior,  Sept. 

*  Carman  v.  Johnson,  20  Mo.  108;  10,  1849;  do.  March  10,  1809. 


92  ABSTRACTS    OK    TITLE. 

])cri<)il  of  twenty  3'cars,  bcginniiipj  with  the  present  century, 
tlie  hinds  were  sold  on  credit,  at  not  less  than  $2.00  per  acre; 
but  the  credit  system  not  workini^  satisfactorily,  in  1820,  it 
was  abandoned  and  the  price  reduced  to  $1.25  per  acre.^  The 
$2.50  per  acre  lands  are  such  as  lie  within  the  limits  of  rail- 
road or  internal  improvement  grants.  Exceptions  to  these 
rules  are  made  under  the  pre-emption  and  homestead  laws, 
which  will  be  noticed  hereafter.  The  lands  are  lirst  required 
to  be  surve)'ed,  then  advertised  and  exposed  for  sale  at  public 
auction,  after  which,  what  remains  is  subject  to  private  entry, 
location,  etc.,  at  fixed  prices. 

§  4.  Public  Land  Sales.  The  public  land  sales  are  held  in 
pursuance  of  a  proclamation  by  the  President,  or  public  no- 
tice given  in  accordance  with  directions  from  the  General  Land 
Office.  At  this  sale  the  lands  are  offered  at  a  minimum  price, 
and  can  not  be  sold  for  less,  but  may  be  sold  for  as  much  more 
as  any  one  will  give.  On  pajMuent  of  price  for  which  the 
land  is  sold,  the  Receiver  issues  his  receipt  as  in  other  cases 
and  the  sale  is  noted  on  the  tract  books  of  the  Kegister.  The 
law  limits  the  duration  of  the  sale  to  two  weeks,  and  in  ca^^e 
of  a  shorter  period,  private  entries  are  not  permitted  until  the 
expiration  of  that  terin.^  O'^b'?  comparative!}',  a  small  por- 
tion of  the  public  lands  are  disposed  of  by  this  method. 

§  5.  Private  Entry  of  Lands.  The  term  "  eutrj^,"  as  ap- 
plied to  appropi'iations  of  public  land,  is  said  to  have  been 
borrowed  from  the  State  of  Virginia  wiwire  it  had  been  used 
in  that  sense  from  a  very  remote  period.  It  has  now  a  fixed 
and  definite  signification  in  the  legal  nomenclature  of  the 
country,  and  means  that  act  by  which  an  individual  acquires 
an  inceptive  right  to  a  portion  of  the  unappropriated  soil  of 
the  country  by  filing  his  application  for  same  in  the  office  of 
the  designated  land  agents  of  the  government,  and  is  confined 
to  the  right  to  purchase  at  private  sale.^  The  entry  is  made 
by  presenting  to  the  Register  of  the  district  land  office  a  writ- 
ten  application   describing   the   tract  desired,*  to  which   the 

»  2  Stat,  at  Large,  73;  Eldred  v.  1  Lester's  Land  Laws,  847;  2  do.  2.S7. 
Sexton,  19  Wall.  189.  »  Chatard  v.  Pope,  12  Wheat.  586. 

^  See  Instructions  Gen.  Land  Office;  *  Act  Feb.  24,  1810. 


INCEPTION    OF    TITLE.  93 

Eegister  attaches  liis  certificate,  setting  fortli  the  fact  of  siicli 
tract  being  at  the  time  subject  to  private  entry,  and  specifying 
tlie  price  per  acre.  The  application  is  then  taken  to  the  Re- 
ceiver to  whom  payment  is  made,  and  who,  in  return,  gives 
duplicate  receipts,  one  of  wliich  is  retained  by  the  applicant 
to  be  surrendered  on  receiving  his  patent,  and  the  other,  to- 
gether with  the  application,  is  delivered  to  the  Register,  who, 
after  placing  the  application  on  file,  issues  his' certificate  of 
purchase  of  the  land.  The  application,  accompanied  by  the 
Register's  corresponding  certificate  of  purchase  is  then  fur- 
warded  to  the  General  Land  Otiice  for  official  action.^  Patents 
do  not  issue  in  the  usual  course  of  business  in  the  General 
Land  Office  until  several  years  after  the  entry  has  been  made, 
though  conveyances  with  warranty  are  freely  made,  and  the 
property  frequently  passes  through  many  hands,  on  the 
strength  of  the  inchoate  title  conferred  b}^  entry  and  pav- 
nient.  The  recital  of  this  entry  forms  the  first  statement  of 
the  abstract  of  all  lands  acquired  in  this  manner,  and  should 
be  followed,  whenever  practicable,  with  the  Receiver's  certifi- 
cate of  purchase  and  payment. 

§  6.  Nature  of  Title  conferred  by  Entry.  Tlie  practice  of 
dating  the  legal  title  from  the  date  of  the  entry  is  familiar  in 
many  of  the  States,^  yet  nothing  passes  a  perfect  title  to  public 
lands,  with  one  exception,  but  a  patent,'  The  exception  being 
where  Congress  by  special  act  conveys  land  in  words  of  present 
grant.*  Congress  has  the  sole  power  to  make  and  authorize 
appropriations  of  the  public  lands^  and  to  declare  the  effect 
and  dignity  of  titles  emanating  from  the  United  States,"  and  the 
whole  legislation  of  the  federal  government  in  relation  thereto, 
declares  the  patent  the  superior  and  conclusive  evidence  of  legal 

'  1  Lester's  Land  Laws,  31L  34G;    11  do.  47;  Grignon's  Lessee  r. 

2  O'Brien  v.  Perry,  1  Black.  132;  Astor,  2  Howard,  819;  Challefoux  v. 

Tiddv.  Rines,  26  Minn.   201.    Bui-  Dnclinrme,  4  Wis.  554. 

lock  V.  Wilson,   5   Port.  (Ala.)  338;  ^United  States  v.  Fitz£rerald,  15 

Burdick  v.  Briggs,  11  Wis.  126.  Pet.   407;   Farrington  v.  Wilson,  29 

«3  Opinions  Att'y  Gen.  91;   Car-  Wis.  383. 

man  v.  Johnson,  20  Mo.  108.  ^  Bagnell  v.  Broderick,  13  Pet.  436. 

*3  Opinions  Att'y  Gen.  350;  9  do. 


94  ABSTKACTS    OF    TITLE. 

title:  until  it  issues  the  foe  remains  in  the  government.'  The 
entry  can  only  come  in  aid  ot"  the  legal  title,  and  is  no  evi- 
dence of  such  standing  alone,  when  opposed  to  a  patent  for 
the  same  land.'^  But  a  party  who  has  complied  with  all  the 
terms  and  conditions  wliicli  entitle  him  to  a  patent  for  a  par- 
ticular tract,  acquires  a  vested  interest  therein,  and  is  to  be 
regarded  as  the  equitable  owner  thereof,  the  government  sim- 
ply retaining  the  formal  legal  title  in  trust  for  the  purchaser 
until  the  patent  issues.^  The  right  to  a  patent  once  vested  is 
equivalent,  as  respects  the  government,  to  a  patent  issued; 
and  when  issued  it  relates,  so  far  as  may  be  necessary  to  cut 
off  intervening  claimants,  to  the  inception  of  the  right  of  the 
patentee.  The  interest  thus  acquired  is  a  recognized  prop- 
erty wliich  courts  will  respect  and  protect,*  and  a  valid  subject 
of  sale  or  transfer.'  The  assignment  of  the  certificate  of  en- 
try passes  the  equitable  title  to  the  land,'  or  if  as  collateral 
security  creates  an  equitable  lien.^  On  filing  the  assio;nment 
of  the  certificate  in  the  General  Land  OiHce,  patent  will  issue 
to  the  assignee  with  the  same  effect  as  to  the  original  pur- 
chaser,^ or  if  issued  to  the  original  purchaser  he  will  take  only 
as  trustee  for  the  true  owner.'"  Assignments  are  not  fre- 
quently met  with  on  the  records.  As  a  rule,  the  early  propri- 
etors disposed  of  their  interests  under  the  entry,  by  deed  of 
bargain  and  sale,  and  usually  with  covenants  of  seizin  and  war- 
ranty. The  Receiver's  receipt  was  usually  placed  on  record 
as  the  foundation  of  title,  while  the  patent,  in  the  mutations 

iPeak  V.  Wendel,  5  Wheat.   293;  Lane  v.  Bovee,  35  Wis.  27. 
Hooper  v.  Scheimer,    23  How.  235;  ®  Carrall  v.  Safford,  3  How.   460; 

Hayward    v.   Oinisbee   11    Wis.   J;  Hntchings  v.  Low,  15  Wall.  88. 
Bronson  v.  Kukuk,  3  Dill.  490.  ''  Siliym?n  v.  Kin|r,  36  Iowa.  207; 

2Baird  v.   Wolf.  4   McLean,  549;  Meyers  r.  Crcft,  13   Wall.  2  1;  Bm- 

Peak  V.  Wendel,  5  Wheat    293.  dick  v.  Wentworth,  42  Iowa,  440. 

3  Worth  V.  Bran-on,   98  U.  S.  (8  «  Wallace  v.  Wilson,  30  Mo.  335. 

Otto)  118;  Waters  v.  Bush,  42  Iowa,  '  Instructions  Sec'y  Interior;  1  Les- 

255.  ter's  L.  L.  351;    Clark  v.  Hall,  19 

*  Stark  V.  Starrs,  6  Wall.  402;  Tay-  Mich.  356. 

lor  V.  Brown,  5  Cranch,  234;  Morrill  i"  Stark  v.  Mather.l  Walker  (Miss.) 

t'.  Chapman,  35  Cal.  88;    Astrom  v.  181;    Magruder  v.    Esmay.  ''>5  Ohio 

Hammond,  3  McLean,  107.  St.  2il;   Cunningham  v.  Ashley,  14 

*  Gaines  v.  Hale,  26  Ark.  168;  Mc-  How.  377. 


INCEPTION    OF   TITLE.  95 

t]i]-oiii;;li  which  the  property  afterward  passeJ,  was  overlooked 
•and  frequently  forgotten. 

The  etiect  of  location  or  entry  in  due  form,  is  to  segi-egate 
the  land  from  the  public  domain  and  subject  same  to  private 
ownership  with  all  the  incidents  and  liabilities  thereof.  While 
such  location  is  in  force  no  other  can  lawfully  be  made;'  the 
public  faith  has  become  pledged  to  the  locator  and  any  subse- 
quent grant  of  the  same  land  would  be  void,  unless  the  first 
location  or  entry  is  set  aside.'' 

§  7.  What  lands  subject  to  Entry.  It  is  a  fundamental 
principle,  underlying  the  land  system  of  the  country,  that  pri- 
vate entries  are  never  permitted  of  the  public  lands  (unless 
Congress  by  special  act  order  otlierwisc)  until  after  they  have 
been  exposed  at  public  auction  at  the  price  at  which  they  are 
afterward  subject  to  entry.^  Where  lands  have  been  sur- 
veyed but  not  exposed  at  public  sale  they  may  be  obtained 
under  the  provisions  of  the  pre-emption  law,  in  which  manner 
nearly  all  the  valuable  lands  in  the  States  admitted  since  18-11, 
have  been  taken  up.*  Lands  known  as  "  mineral  "  includino- 
deposits  of  the  precious  metals,  coal,  and  salines,  are  not  sub- 
ject to  ordinary  private  entry  and  are  disposed  of  in  accord- 
ance with  sjjecial  acts,^  the  general  procedure,  however,  being 
the  same.  jSTor  can  lands  be  entered  which  have  been  re- 
served for  any  purpose,  or  otherwise  withdrawn  from  mar- 
ket.' 

§  8.  Pre-emption  Entries.  "In  the  earlier  stages  of  our 
land  system,"  says  Mr.  Justice  Miller,^  "  no  right  or  interest 
could  be  secured  by  the  individual  in  any  public  land  until 
it  had  been  surveyed  into  legal  subdivisions;  nor  after  this 
had  been  done  was  it  subject  to  sale  until  by  a  proclamation 
of  the  president,  it  was  brought  into  market.     This  procla- 

1  Simmons  v.  Wagner,   101  U.  S.       Att'y  Gen.  167. 

251.  *  Meyers  v.  Croft,  13  Wall.  291. 

2  Worth  V.  Branson,  8  Otto,  118;  ■>  Act,  July  26th,  1866. 

Lyilei;.  Arkansas,  9  How.  314;  U.  S.  «  Hot  Spring  Cases,   92  U.  S.    (2 

V.  Fitzgerald,  f5  Pet.  401.  Otto)  698;  Bellows  v.  Todd,  39  Iowa, 

»  Eldred  v.  Sexton,  19  Wall.  189;  209. 

do  30  Wis.  189.     See  also  4  Opinions  '  Atherton  v.  Fowler,  6  Otto,  513. 


96  ABSTRACTS    OF    TITLE. 

mation  always  fixed  a  time  and  place  when  the  lands  within  a 
given  district  were  offered  for  sale  at  public  auction;  and  un- 
til all  of  tliem  were  sold,  which  could  be  sold  in  this  manner, 
at  prices  above  the  minimum  fixed  by  law,  no  one  could  make 
a  private  entry  of  a  particular  tract  or  establish  a  claim  to  it. 
The  scenes  of  violence,  fraud  and  oppression,  and  the  combi- 
nations which  attended  these  sales,  and  the  wrongs  perpeti-ated 
under  them,  led  to  the  law  of  pre-emption.  It  often  occurred 
that  emigration,  in  advance  of  the  readiness  of  the  public 
lands  for  these  sales,  had  caused  hundreds  and  thousands  to 
settle  on  them;  and  when  they  came  to  be  sold  at  public  auc- 
tion, their  value  enhanced  by  the  houses,  fences  and  other  im- 
provements of  the  settler,  placed  them  beyond  his  reach,  and 
they  fell  into  the  hands  of  heartless  speculators.  To  remedy 
this  state  of  things  the  pre-emption  system  was  established." 
A  "pre-emption  claim"  confers  upon  the  settler  the  exclusive 
riirht  to  purchase  at  a  minimum  price,  the  public  land  of  the 
United  States  upon  which  he  has  settled  in  conformity  to  the 
acts  of  Congress  on  that  subject.^  This  policy  of  securing  to 
individuals  a  preference  right  to  purchase,  had  its  origin  at 
about  the  commencement  of  the  present  century,  and  at  first 
was  confined  to  lands  which  had  been  surveyed,  but  gradually 
this  was  changed  until  in  1862,^  pre-emptions  were  allowed, 
under  proper  restrictions,  on  unsurveyed  lands  as  well.  The 
laws  on  this  subject  are  numerous,  beginning  as  early  as 
May  10,  1800  (which  allowed  pre-emptions  in  the  country 
northwest  of  the  Ohio  river),  and  were  at  first  restricted  to 
particular  classes  and  localities,  until  the  act  of  Sept.  4,  1841,' 
and  supplemental  act  of  March  3,  1853,*  which  superseded 
all  previous  laws  and  now  constitute  the  general  pre-emption 
system.  Under  this  law  the  settler,  possessing  the  prescribed 
qualifications,  who  enters  upon  the  public  land,  making  im- 
provements and  bringing  the  same  under  cultivation,  and 
otherwise  conforming  to  law,  acquires  a  prior  and  exclusive 
right  to  purchase,  and  is  protected  in  the  enjoyment  of  his 

»  Dillingham  v.  Fisher,  5  Wis.  475.  «  5  Stat,  at  Large,  457. 

2 12  Stat,  at  Large,  418.  *  10  Stat,  at  Large,  244. 


INCEPTION    OF    TITLE.  97 

cLum  from  intrusion  or  trespass  by  others.'  To  fix  tlie  rii^Uts 
thus  acquired,  he  is  required,  udiere  the  land  at  the  time  of 
settlement  is  subject  to  ])rivate  entiy,  to  file  with  the  Regis- 
ter a  declaratory  statement,  describin;^  the  land  settled  upon, 
and  reciting  the  intention  of  such  person  to  claim  the  same 
under  the  provisions  of  the  pre-eui[)tion  act,  and  within  twelve 
iTionths  thereafter  to  make  proof  of  settlement  and  payment; 
failino^  in  these  particulars  the  land  so  settled  or  improved 
shall  be  subject  to  the  entry  of  any  other  person.  By  the 
act  of  May  30, 1SG2,^  the  pre-emption  claimant  of  unsurveyed 
lands  is  required  to  tile  his  declaratory  statement  withiii  three 
months  from  the  date  of  the  receipt  at  the  district  land  oflice, 
of  the  approved  plat  of  the  township  embracing  such  ])re- 
emption  settlement.' 

§  9.  Nature  of  Pre-emption  Rights.  The  right  of  pre- 
emption attaches  only  to  such  public  lands  as  are  subject  to 
the  operation  of  the  general  land  system  of  the  country,  and 
not  to  those  which  have  been  taken  out  of  the  class  of  public 
lauds  and  appropriated  to  si)ecific  objects,  or  reserved  for  par- 
ticular purposes.*  jS[o  title  is  conferred  by  the  pre-emption 
laws.  They  give  merely  a  naked  ri^^ht  to  purchase  and  ac- 
quire title  within  a  specified  time,  on  compliance  with  certain 
conditions.^  The  settler  acquires,  and  can  acquire,  no  vested 
interest  in  the  land  he  occupies  by  virtue  simply  of  settle- 
ment;* the  land  continues  subject  to  the  absolute  disposing 
power  of  Congress  until  all  the  necessary  legal  steps  to  per- 
fect an  entrj'  of  the  land  have  been  taken.''  Before  this  the 
settler  has  nothing  but  a  contingent,  personal  privilege  to 
become,  without  competition,  the  first  purchaser  of  tlie  prop- 
erty, which  he  may  never  exercise,  or  which  he  may  waive  or 
abandon.     Tiiis  right  has  been  uniformly  held  to  confer  no 

1  Coleman  v.  Alk-n,  5  Mo.  A  pp.  127.  Cal.  577. 

2 12  Stat,  at  Large,  418.  ^  iq  Opinions  Att'y  Gen.  56;  Bur- 

» ]\Ipgt'rle  V.  Ashe,  47  Cal.  632.  gess  v.  Gray,  16-How.  48. 

*3  Opinions  Att'y  Gen.  456.  '  Frisbie  v.  Whitney,  9  Wall.  187; 

MVooaward  t).  McReynokli?,  2  Tin.  Busch  v.  Donohue,   31   Mich.  482; 

(Wis.)  268;  Brown  v.  Throckmorton,  Yosemite  Valley  Case,  15  Wall.  77; 

11  111.  529;  Hempliill  v.  Davies,  38  R.  R.  Co.  v.  Tevis,  41  Cal.  489. 
7 


98  ABSTRACTS    OF   TITLE. 

present  title  to  the  land,  being  (^ratuitons,  prospective  and 
contingent;  and  that  the  general  proprietor  (tiie  government) 
has  a  right  to  reserve  the  land  fronri  sale,  to  recall  the  privi- 
lege previously  conferred,  or  make  any  absolute  grant  of  the 
land  to  other  parties,  with  or  without  consideration.*  The 
interest  acquired  by  a  pre-emption  right  is  not  an  estate 
within  any  definition  known  to  the  conimoa  lavv,^  and  at  best 
can  be  regarded  only  as  a  right  of  occupancy  with  a  privilege 
(enjoyed  by  no  one  else)  of  purchasing  on  prescribed  condi- 
tions. It  can  not  be  sold  so  as  to  vest  an}'  rights  in  the  land 
in  the  purchaser,  and  such  a  sale  would  extinguish  the  pre- 
eraptioner^s  own  right.* 

§  10.  Conveyances  before  Entry.  The  benefits  of  tlie 
pre-emption  acts  being  intended  only  for  the  actual  settler 
are  personal  in  their  application,  the  12th  section  of  the  act 
of  1841*  providing  that  "  all  assignments  and  transfers  of  the 
right  hereby  secured  prior  to  the  issuing  of  the  patent  shall 
be  null  and  void,"  and  to  prevent  speculators  from  acquiring 
the  land,  the  applicant  before  being  allowed  to  enter  same,  is 
required  to  swear  that  lie  has  not  contracted  it  away,  nor  set- 
tled to  sell  on  speculation,  and  any  grant  or  conveyance  made 
by  him  before  entry  is  declared  void,  with  an  exception  in  fa- 
vor of  hona  fide  purchasers  for  a  valuable  consideration. 
Tliis  restriction  has  been  held,  however,  to  extend  only  to 
the  right  to  pre-emption;  that  is,  the  preference  right  to  pur- 
chase at  a  minimum  price,  no  matter  what  the  value  might 
be  when  the  time  limited  for  perfecting  the  pre-emption  had 
expired,^  leaving  the  pre-emptioner  free  to  sell  or  otherwise 
dispose  of  the  land  after   the  entry  had  been  made.''     Since 

^  11  Opinions  Att'y  Gen.  490.  572,  where  the  interest  is  regarded 

2  Dolaunay  ».  Burnett,  \  Gilm.  (111.)  as  property  which  may  pass  by  deed, 

484.  the  piu-chaser  being  regarded  as  the 

'  Moore  v.  Jordan,  14  La.  Ann.  414;  "  legal  rt^presentative  "  of  the  origi- 

Qviinn  v.  K.i'nyon,  38  Cal.  499;  Mor-  nal  claimant;  also,   Bowers  v.  Kus- 

g.in   V.  Curtenins,    4  McLpan,  o66;  cher.  14  Iowa,  801. 

Brewster  v.  Madden,  15  Kan.  249.  *5  Stat,  at  Large,  457. 

But  see  Delaunay  v.  Burnett,  4  Gilm.  *  Meyers  v.  Croft,  13  Wall.  291. 

(111.)  454;    Phelps  v.  Smith,  15  111.  *  Robbins  v.  Bunn,  54  111.  48. 


INCEPTION    OF    TITLE.  99 

the  passage  of  the  act  of  1811,  in  those  parts  of  the  Uniteu 
States  where  that  act  applies,  the  right  to  sell  has  been 
freely  exercised  after  the  claim  was  proved  np,  the  land  paid 
for  and  the  certificate  of  entrj^  received;  the  pre-emptioner 
then  standing  in  the  same  relation  to  the  government  as 
other  purchasers,'  and  tiiough  the  patent  may  only  issue  to 
the  purchaser,  it  will  inure  to  the  benetit  of  his  grantee." 
By  proof  and  payment  the  equities  of  the  claimaTit  are  ma- 
tured and  complete,  and  while  the  right  of  government  to 
dispose  of  its  own  property  is  undisputed,  as  well  to  pre- 
scribe rules  for  the  disposition  of  same,  yet  subject  to  these 
well-known  principles,  parties  rightfully  in  possession  of  the 
soil  may  make  valid  contracts,  even  concerning  the  title,  pred- 
icated upon  the  hypothesis  that  they  may  thereafter  lawfully 
acquire  same,  except  in  cases  where  Congress  has  imposed 
positive  restrictions.* 

§  11.  Graduation  Entries.  In  order  to  further  facilitate 
settlement  and  encourage  the  sale  of  public  lands  to  actual 
settlers  and  cultivators.  Congress,  by  the  act  of  August  4, 
1854,*  provided  for  a  graduated  scale  of  prices,  for  lands  which 
had  been  in  the  market  for  ten  years  and  upward,  ranging 
from  12|-  cents  to  $1.00  per  acre.  This  act  remained  in  force 
until  June  2,  1862,  when  it  was  repealed.  In  its  essential 
features  it  closely  resembled  tiie  pre-emption  law,  to  which  it 
was  in  fact  an  aid.  The  lands  could  also  be  purchased  for 
cash  at  the  graduated  price.  Like  the  pre-em])tion  law,  the 
rights  conferred  by  this  act  were  personal,  and  because  of  act- 
ual settlement  and  cultivation,  made  or  contemplated.  As- 
signments of  the  riglits  acquired  under  the  acts  were  expressly 
prohibited  and  wholly  disregarded,  and  the  patents  in  every 
instance  issued  to  the  original  purchaser. 

The  method  of  acquiring  title  under  graduation  acts  was 

'  CacTy  r.  Eigfhmey,  54  Iowa,  615.  after    entry    had     been     perfected: 

2  Camp  V.  Smith,  2   Minn.  155.  Clark  v.  Baker,  14  Cal.  612;   Christy 

^  Lamb  v.   Davenport,    18    Wall.  v.  Dana,  34  Cal.  548.     See  also  Rea- 

307.     In  California  it  has   been  held  soner  v.  Markley,  25  Kan.  635. 

that  a  mortgage  made  before  proof  *  10  Stat,  at  Large,  574. 

and    payment,   might   be    enforced 


100  ABSTRACTS    OF    TITLK. 

substantially  the  same  as  under  the  pre-emption  laws,  with 
only  a  slight  difference  in  details.  It  is  not  cuntoniary,  nor  is 
it  necessary,  to  incorporate  the  inceptive  details  ^j^'/or  to  the 
entry  in  the  abstract.  The  matter  is  optional  with  the  exam- 
iner, yet  the  entry  is  the  first  material  stage. 

§  12.  Homestead  Eatries.  Until  1882,  Congress  had 
passed  no  general  law  offering  tlie  public  domain  in  a  lim- 
ited quantity,  to  any  person  who  would  cultivate  and 
make  a  permanent  home  thereon.  Pre-emption  laws,  secur- 
ing the  right  to  enter  hind  by  purchase  at  a  minimum  price 
fixed  per  acre  h;id  been  enacted,  and  donation  laws,  applicable 
to  particular  States  had  been  passed,  but  the  liberal  policy  of 
offering  homesteads  had  not  been  extended  to  all  persons. 
The  act  of  May  10th  of  that  year^  is  the  first  homestead  law 
of  the  government,  "  and  it  would  be  difficult  perhaps  "  says 
Dillon,  J.,  "  to  point  to  any  enactment  of  the  Federal  Congress, 
more  wise  in  conception,  just  in  policy,  and  beneficial  in  re- 
sults than  this."^  By  this  act  a  quantity  of  land,  not  exceed- 
in^j- 160  acres,  is  given  to  any  person  being  the  head  of  a  fani- 
ilv  and  possessing  the  requisite  qualifications,  on  condition  of 
settlement,  cultivation  and  continuous  occupation  as  a  home 
by  the  settler,  for  the  period  of  five  years.  During  this  pe- 
riod he  is  prevented  from  alienating  au}''  part  of  it,  or  from 
makino-any  actual  change  of  residence,  or  from  abandoning  the 
land  for  more  than  six  months  at  a  time.  A  full  compliance 
with  all  the  provisions  of  the  act,  entitles  him  to  a])atent  at 
the  expiration  of  the  five  years.  The  law  requires  the  land  "  to 
be  located  in  one  body,  in  conformity  to  the  legal  subdivisions  of 
the  public  lands,  and  after  the  same  shall  have  been  surveyed." 
The  applicant  is  required  to  file  with  the  Register  of  the 
district  land  ofiice  his  application,  designating  the  tract  desired 
to  be  entered,  together  with  his  affidavit,  setting  forth  the  facts 
which  bring  him  within  the  reqairemants  of  the  law,^  where- 
upon the  Receiver  issues  homestead  duplicate  receipts  for  each 

'  12  Stat,  at  Large,  392.  sion  of  one  half  of  one  per  cent,  up- 

2  Seymour  v.  Sanders,  3  Dill.  437.  on  the  cash  value  of  the  land  ap- 

^  A  fee  of  $10  must  also  be  paid  at  plied  for,   based  on  $1.25  per  acre, 
this  time,  together  with  a  commis- 


INCEl'TION    OF   TITLE,  101 

entry,  one  of  whicli  is  delivered  to  the  applicant,  and  the  oth- 
er returned  to  the  General  Land  Office.  No  certificate  is  is- 
sued at  the  time  of  entry,  nor  until  the  expiration  of  the  five 
years,  except  in  case  of  a  sale  for  the  benefit  of  infant  heirs.* 
or  where  full  payment  is  made  before  that  time  as  provided 
by  the  act.  In  case  of  a  sale  for  the  benefit  of  infant  heirs, 
a  certificate  issues  in  the  name  of  the  purciiaser,  upon  evi- 
dence of  sale,  made  in  obedience  to  a  decree  of  a  court  of  com- 
petent jurisdiction.  In  case  of  full  payment  the  party  is  re- 
quired to  make  proof  of  settlemont  and  cultivation  as  required 
by  the  pre-emption  laws,  upon  which,  and  the  surrender  of 
the  homestead  duplicate,  a  new  and  original  entry  may  be 
made  and  a  pre-emption  receipt  issue  as  in  ordinary  cases.^ 

§  13.  Rights  acquired  under  Homestead  Acts.  By  the 
preliminary  proceedings  already  noted,  an  inceptive  right  is 
vested  in  the  settler,  which  by  a  faithful  observance  of  the 
law  in  regard  to  settlement  and  cultivation  for  the  continuous 
term  of  five  years,  and  final  proof  and  payment,^  is  perfected 
and  made  the  basis  of  a  patent  or  complete  title.  The  home- 
stead settler's  right  attaches  only  from  the  date  of  entry,  the 
pre-emptor's  from  the  date  of  his  actual  personal  settlement. 
The  title  in  either  case  is  consummated  by  a  full  compliance 
with  the  terms  and  conditions  imposed  by  law.*  By  the  4th 
section  of  the  act  of  1862,  land  acquired  in  this  manner  is  de- 
clared to  be  not  liable  for  debts  contracted  prior  to  the  issuing 
of  the  ])atent. 

§  14.  Tree  Claims.  To  promote  the  growth  of  timber  on 
the  treeless  prairies  of  the  West,  Congress  has  further  enacted  a 
law,  by  which  any  person  entitled  to  make  a  pre-emption  or 
homestead  entry  may  secure  100  acres  of  public  land  by  plant- 
ing, protecting  and  keeping  in  a  healthy  growing  condition 
thereon,  for  eight  years,  ten  acres  of  timber.     Lands  subject 

'  Section  2  of  act.  The  fees  and  commissions,  however, 

^  Circular  Gen.  Land  Office,  Oct.  vary    somewhat.     See    Instructions 

30,  1862.  Gen.  Land  Office,  Oct.  30,  18G2. 

^I'he   payment  here  mentioned  is  *  Commissioner's  Instructions,  Aug. 

a  commission  of  J^  of  one  per  cent.  25,   1866. 

paid  on  the  issuance  of  the  certificate. 


102  ADSTKACTS   OF   TITr,E. 

to  enti-v  niuler  this  act  must  be  composed  exclusively  of  prairie 
];inds,  or  other  lauds  devoid  of  timber.  At  the  expiration  of 
eii^ht  years  final  proof  is  made  and  patent  issues  as  in  other 
cases.  Residence  or  actual  settlement  is  not  necessary,  nor 
will  an  entry  of  this  character  preclude  a  simultaneous  home- 
stead or  pre-emption  entry,  hence  "  tree  claims"  liave  been 
made  on  a  large  portion  of  the  western  lands  and  will  form  the 
initial  stage  of  title  of  much  valuable  property. 

§  15.  Location  by  Military  "Warrants.  The  practice  of 
granting  bounty  land  to  officers  and  soldiers  who  have  been 
engaged  in  the  military  service  of  the  United  States,  as  a  public 
reward  for  devotion  and  patriotism,  dates  back  to  the  period  of 
the  Revolution,  and  has  formed  the  subject  of  a  number  of 
Congressional  enactments  since  tiiat  time.  The  warrants  or 
certificates  issued  in  pursuance  of  these  acts  may  be  located 
at  any  land  office  in  the  United  States  and  must  be  made  on 
lands  subject  to  private  entr}-,  according  to  the  legal  subdivis- 
ions and  in  one  body,  the  selection  always  to  be  in  as  compact 
a  form  as  possible.  The  law  expressly  forbids  the  location  of 
a  warrant  upon  any  lands  to  which  there  shall  bs  a  pre-emption 
right,  or  upon  which  there  shall  be  an  actual  settlement  or  cul- 
tivation, or  upon  any  lands  which  are  reserved  or  withdrawn 
from  market  for  any  purpose  whatever.*  When  located  by  the 
warrantee  in  person  the}'  are  available  upon  any  tracts  of  land 
which  may  be  entered  under  the  general  pre-emption  laws, 
whether  same  has  or  has  not  been  offered  at  public  sale.^  By 
act  of  Congress  of  March  22,  1852,  the  certificates  of  location 
of  militar}'  land  warrants  were  made  assignable,  and  the  inter- 
est acquired  by  valid  location  was  made  to  pass  by  deed  or  in- 
strument of  writing,  in  the  form,  and  subject  to  the  regula- 
tions prescribed  by  the  General  Land  Office,  the  assignee  be- 
coming tully  vested  with  all  the  rights  and  property  of  the 
original  owner  or  warrantee.^  The  entry  is  made  by  applica- 
tion to  the  Register  alone,  who  issues  duplicate  certificates 
of  purchase,  one  of  which  is  delivered  to  the  purchaser  and 

1  Act  Feb.  11,  1847;  Act  Sept.  28.      April  1,  1848;  do  Mar.  31,  1851. 
18o0.  ^  Waters  v.  Busch,  42  Iowa,  255; 

2  InstructioDS   Gen.     Laad  OfiBce,      Bell  v.  Heai-ne,  19  How.  260. 


INCEPTION   OF   TITLE.  103 

the  other  transmitted  to  the  General  Land  Office  as  in  other 
classes  of  entries.  If  the  certificate  lias  been  a^si_iiJned,  and  re- 
ceived before  the  issue  of  the  j^atent,  tlie  same  will  be  issued 
in  the  name  of  the  assignee.  A.ssignments  and  locations,  as 
well  as  deeds  of  land  so  located  prior  to  the  issue  of  the  pat- 
ent, if  made  before  March  22,  1852,  hav^e  been  held  invalid.^ 
§  16.  Land  Scrip.  In  178i,  the  State  of  Virginia  ceded 
to  the  United  States  the  largest  and  most  valuable  body  of 
land  that  ever  belonged  to  the  public  domain  of  any  State  in 
tlie  world.  But  prevnous  to  the  cession  she  had  promised  to 
give  certain  portions  of  it  to  the  soldiers  and  sailors  who  had 
served  during  the  Kevolutionarj'  War  in  her  armies  and  navies. 
The  government  took  the  land  charged  with  this  obligation 
to  satisfy  tlie  claims  of  Yirginia's  defenders,  and  assumed  all 
unsatisfied  outstanding  military  land  warrants  of  the  State, 
issued  by  proper  authorities,  giving  in  exchange  therefor  the 
iand  "scrip  "  of  the  United  States.^  This  scrip  is  receivable 
in  payment  of  any  lands  owned  by  the  United  States,  sub- 
ject to  sale  at  private  entry,  but  can  not  be  a]-)plied  by  pi'e- 
emptors.  There  has  also  been  issued  under  acts  of  Congress,* 
and  in  pursuance  of  treaties  with  the  Indian  tribes  a  species 
of  location  certificates  known  as  Indian  or  half-breed  scrip. 
It  is  issued  to,  and  can  only  be  located  in  the  name  of  the 
Half-breed,  and  unlike  the  Yirginia  scrip  can  not  be  treated 
as  money,  but  must  be  located  acre  for  acre.  This  scrip  is 
not  assignable  and  transfers  of  same  are  held  void.  Though 
originally  confined  to  reservations,  the  sphere  of  location  has 
by  statute  been  enlarged  so  as  to  comprise  any  other  unoc- 
cupied lands  subject  to  pre-emption  or  private  sale.  No  re- 
ceipt is  issued  to  the  locator,  except  in  unavoidable  cases, 
where  there  is  a  small  excess  in  the  area  of  location  over  the 
scrip,  which  must  be  paid  for  and  receipt  issued  as  in  bounty 
land  warrant  cases.  But  no  certificate  of  purchase  is  issued, 
the  scrip  and  application,  instead  of  certificates  of  purchase, 

»  Nichols  V.  Nichols,  3  Pin.  (Wis.)  ^  q  Opinions    Atty.  Gen.  243;  9  do. 

174;  Steplienson  v.  Wilson,  37    Wis.       156;  Act  Aug.  31,  1852. 
482.  *  10  Stat,  at  Large,  304. 


104  ABSTKACTS    OF    TITLE. 

beini^  the  instruments  of  title  which  arc  returned  to  the 
General  Land  Office  in  this  class  of  business.'  Private  land 
scrip  is  issued  on  confirmation  of  the  claims  of  individuals 
and  is  intended  as  a  conijDensation  to  the  donee  for  the  loss  of 
valuable  estates  or  interests  in  lands.  It  may  be  assigned, 
and  when  assigned  may  be  located  in  the  name  of  the  assignee. 
It  would  appear  that  entries  made  with  this  scrip  are  not 
patentable,  no  provision  being  made  for  same,  but  it  seems 
that  in  this  case  a  patent  is  not  absolutely  necessary  for  the 
full  protection  of  claimants,  inasmuch  as  a  certificate  of  entry 
will  be  full  evidence  of  a  complete  relinquishment  by  the 
United  States  of  all  her  interests  in  the  land  located.^  The 
most  important  of  this  peculiar  class  of  paper  is  that  known 
as  Agricultural  College  scrip.  It  is  issued  in  pursuance  of 
an  act  of  Congress,  passed  July  2,  1862,  to  donate  a  portion 
of  the  public  land  to  the  several  States  and  Territories  whicli 
may  provide  colleges  for  tlie  benefit  of  agriculture  and  median  ic 
arts.  The  amount  of  land  donated  by  this  act  was  a  quantity 
equal  to  80,000  acres  for  each  senator  and  representative  in 
Congress  by  the  apportionment  under  the  census  of  1S60. 
The  quantity  of  land  to  which  each  State  was  entitled  was 
to  be  selected  primarily  from  such  lands,  within  th(}  limits  of 
such  State,  as  were  subject  to  sale  at  private  entry  at  the 
minimum  price,  and  in  case  of  a  deficiency  of  such  lands,  the 
Secretary'  of  the  Interior  was  instructed  to  issue  laud  scrip  to 
the  amount  in  acres  for  such  deficiency  of  its  distributive  share. 
This  scrip  to  be  sold  by  the  States  and  the  proceeds  applied  to 
the  uses  prescribed  by  the  act.  The  State  is  prohibited  from 
locating  the  scrip  within  the  limits  of  any  other  State,  but 
their  assignees  may  locate  same  upon  any  of  the  unappro- 
priated lands  of  the  United  States  subject  to  sale  at  private 
entry,  or  in  payment  for  pre-emptions,^  and  in  commuting 
homestead  entries.*     The  manner  of  jDroceeding   to   acquire 

1  Instructions  Gen.    Land    Office,  July  22,  1870. 

Feb   22,  1864;  do.  May  13,  1SG5.  *  Instructions  Gen.    Land     Office. 

^Opinion   and   instructions    Secy.  Feby.  8,  1872.     See  also  15  Stat-  at 

of  Int.,  Aug.  4,  1875.  Large,  227. 

^  lusliuctions     Gen.    Land    Office, 


INCEPTION    OF   TITLE.  105 

title  with  this  chiss  of  certificates  is  the  same  as  in  cash  and 
■warrant  eases. 

§  17.  Swamp  Land  Grants.  B}'  act  of  March  2,  184:9, 
CuiKTess  made  a  2:rant  to  the  State  of  Louisiana  of  certain 
swami.)  and  overflowed  lands,  and  bv  act  of  Sept.  28,  1S50,' 
nuule  a  similar  concession  to  the  State  of  Arkansas  "and  each 
of  the  other  States  of  the  Union  in  which  such  swanij)  and 
overflowed  lands  may  be  situated."  The  first  act  applied  only 
to  the  State  of  Louisiana,  and  vested  the  fee  in  said  lands  upon 
the  approval  of  the  selections  by  the  Secretary  of  tiie  Interior; 
the  general  law  of  1850  provides  that  the  fee  shall  vest  in  the 
State  upon  the  issuing  of  a  patent.  The  method  of  selection 
being  left  optional  with  the  States,  Michigan  and  "Wis- 
consin adopted  the  field  notes  of  survey  as  the  basis  of 
their  acceptance,  while  the  others  agreed  to  ascertain  the  lands 
by  examination  in  the  field.^  The  grant  comprised  all  lands 
which  were  wet  and  unfit  for  cultivation,  and  included  also 
all  lands  which,  thongh  dry  part  of  the  year,  were  subject  to 
inundation  at  the  planting,  growing  or  harvesting  season,  so 
as  to  destroy  the  crop.  These  lands,  for  the  most  part,  have 
since,  by  drainage  and  cultivation,  become  valuable  for  agri- 
cultural purposes,  and  the  title  to  man^^  fine  farms  in  the 
Western  States  is  derived  from  the  swamp  land  grants. 
Though  the  act  provides  for  the  issuing  of  a  patent  to  vest 
the  fee,  it  was  itself  a  present  grant,  wanting  nothing  but  a 
definition  of  boundaries  to  make  it  perfect,  the  patent  being 
merely  in  confirmation  of  the  equitable  title  already  vested,^ 
yet  as  the  fee  remained  in  the  government  until  the  issuance 
of  the  patent,  the  State  would  have  no  power  to  convey  a  le- 
gal title  or  dispose  of  the  land  prior  to  that  event.*  The  com- 
plete abstract,  therefore,  should  recite  the  original  grant,  show- 
ing the  acceptance  by  the  State,  and  any  other  necessary  feat- 
ure, and  finally  the  patent  from  the  government,  as  the  foun- 
dation of  title.  It  will  be  observed  that  the  provisions  of  this 
act  extend  to  and  their  benefits  are  conferred  upon  only  "  each 

19  Stat,  at  Lar^e,  519.  *  Parsons   v.   Comm'rs   S.     &    U. 

2 1  Lester's  L.  L.,  542.  Lands,  9  Wis.  236. 

29  Opinions  Atty.  Gen.  253. 


lOG  ABSTRACTS    OF    TITLE. 

of  tlie  ot]ier  States  of  the  Union,"  and  it  has  always  been  held 
by  tlie  General  Land  Office  that  tlie  grant  extended  only  to 
States  in  existence  at  the  date  of  act,  and  that  as  new  States 
were  admitted  additional  legislation  was  needed  to  confer  the 
benefits  of  the  swamp  grant  upon  tliem.^  In  this  constrnctioii 
Congress  seems  to  have  concurred,  for  in  1860  we  find  a  spe- 
cial statute  extending  the  swamp  grant  to  the  States  of  Oregon 
and  Minnesota,  which  States  had  been  admitted  subsequent  to 
the  passage  of  the  grant  of  1850.  All  grants  of  the  public  do- 
main are  in  the  nature  of  benefits,  and  not  usually  bestowed  by 
general,  but  by  special  legislation,  derived  through  the  orig- 
inal granting  acts,  de^jignating  the  character  and  extent  of  the 
grants  and  the  manner  in  which  they  are  to  be  made  effective 
and  secure  to  the  grantee. 

§  18.  School  Lands.  It  has  always  been  a  cherislied  pol- 
icy of  the  government  to  set  apart  and  appropriate  a  portion 
of  every  township  for  the  advancement  of  education  in  the 
support  of  schools.  Formerly,  one  section  only  was  devoted 
to  this  most  laudable  purpose,  but  in  the  States  admitted 
during  later  3'ears  two  sections  have  been  reserved,  usually 
sections  16  and  36.  The  practice  of  setting  apart  section 
16  is  traceable  to  the  ordinance  of  1785  (being  the  first 
enactment  for  the  disposal  by  sale  of  lands  in  the  western 
territory)  and  became  a  fundamental  principle  b}'  the  ordi- 
nance of  1787,  which  settled  terms  of  compact  between  the 
people  and  States  of  the  Northwest  Territory  and  the  original 
States.  One  of  the  articles,  affirming  that  "  religion,  morality 
and  knowledge  being  necessary  for  good  government  and 
happiness  of  mankind,"  declared  that  "  schools  and  the  means 
of  education  should  forever  be  encouraged."  This  pj'inciple 
was  extended  first  by  congressional  enactment,^  and  afterward 
in  1802,  by  compact  between  the  United  States  and  Georgia 
to  the  Southwest  Territory.  The  constancy  with  which  the 
government  has  ev^er  adhered  to  this  policy  in  the  various  com- 
pacts with  the  people  of  the  newly  formed  States,  and  the  care 

^See  Rulings  Commissioner  Gen.       2,1871. 
Land  Ofiice,  Jan.  19,  1874,  and  May  ^  1  Stat,  at  Large,  5j0. 


INCEPTION    OF    TITLE.  107 

which  Cotio^ress  has  nianifestod  to  prevent  tlie  accnmnlatiou 
of  prior  obligations  which  niiglit  interrupt,  fully  display  their 
estimation  of  its  importance  and  value,'  Where  section  IG  or 
36  are  in  whole  or  in  ])art  included  in  private  claims,  held  by 
titles  confirmed  or  legally  decided  to  be  valid,  the  State  may 
select  their  equivalent  in  other  lands  which  are  called  gener- 
ally lieu  lands.  The  reservation  of  these  sections  is  made  a 
part  of  the  organic  act  on  the  admission  of  the  State  into  the 
Union,  in  words  of  present  grant,  and  passes  to  the  State  the 
equitable  title  to  the  sections  without  further  legislation.  As 
the  government  extends  its  surveys,  so  that  the  location  of  the 
section  can  be  ascertained,  the  title  in  the  State  becomes  per- 
fect and  complete.'' 

§  19.  Railroad  and  Internal  Improvement  Grants.  In  ad- 
dition to  the  grants  already  enumerated  Congress  from  time  to 
time  has  made  large  grants  of  the  public  domain  to  the  differ- 
ent States,  to  aid  in  the  development  of  the  coinitry  by  the  build- 
ing of  railroads  and  other  internal  improvements.  These 
grants,  though  local  in  their  nature,  are  all  governed  by  the 
same  general  principles.  The  acts,  as  a  rule,  convey  in  words 
of  present  grant  which  vests  a  fee  simple  title  in  the  States  to 
which  the  lands  are  given,^  and  where,  as  in  case  of  an  un- 
located  railroad,  no  specific  tracts  are  designated,  they  have 
been  held  to  constitute  a  conditional  grant  i>i^rcBsenti  in  the 
nature  of  a  "j^^ya^,"  which  does  not  attach  to  anj'  particular 
parcel  of  the  public  lands  until  the  necessary  determinative 
lines  have  been  fixed  npon  the  face  of  the  earth,*  but  upon 
such  definite  location  the  title  to  each  particular  parcel  will 
be  as  complete  as  if  it  had  been  granted  by  name,  number  or 
description.^  The  same  general  rules  will  also  apply  to  special 
grants  for  State  improvements.  All  public  grants  are  to  be 
construed  most  strongly  against  the  grantee,  and  this  is  spe- 
cially true  of  legislative  grants.**     In  construinga  congressional 

'See   Cooper  t'.  Roberts,  18  How.  U.S.  v.   Brooks,    10  Howard,  442; 

173,  for  an  elaborate  review  of  this  Godfrey  v.  Bradley,  2  McLean,  41"J. 

subject.  *  8  Opinions  Atty.  Gen.  244. 

2  Cooper  V.  Roberts,  18  How.  173;  ^'d  Opinions  Atty.  Gen.  41;  R.  R. 

Beecber  v.  Wetherby,  5  Otto,  517.  Co.  v.  United  Slates,  92  U.  S.  733. 

"  U.  S.  V.  Perchman,  7  Peters,  51;  «  9  Opinions  Atty.  Gen.  2J3. 


108  ABSTRACTS    OF    TITLE. 

grant,  it  should  always  be  borne  in  mind,  tliat  tlie  act  by 
wliich  it  is  made  is  a  law  as  well  as  a  conveyance,  and  that 
such  effect  ninst  be  given  to  it  as  will  carry  out  the  intent  of 
Congress.  This  intent  can  not  be  defeated  by  applying  to 
the  grant  the  rules  of  the  common  law,  which  are  properly 
applicable  only  to  transfers  between  private  parties,  and  to 
the  validity  of  which  there  must  exist  a  ]-)resent  power  of 
identification  of  the  land  conve^'ed.  Where  no  such  power 
exists,  instruments  with  words  of  present  grant,  are  operative, 
if  at  all,  only  as  contracts  to  convey,  but  in  these,  as  in  all 
other  cases,  the  rules  of  the  common  law  must  yield  to  the 
legislative  will.^ 

§  20.  Who  may  acquire  Title.  The  policy  of  the  general 
government,  in  relation  to  the  sale  of  the  public  lands,  has  ever 
been  most  liberal,  yet  a  few  restrictions  have  been  imposed  in 
certain  cases  which  it  may  be  well  to  notice.  The  general 
land  system  makes  little  or  no  discrimination,  but  to  this 
has  been  superadded  a  specific  new  fact:  the  sale  or  dis- 
posal of  certain  lands,  in  certain  limited  quantities,  at  a  reduced 
price  or  on  certain  specific  conditions,  for  personal  use  and 
for  actual  settlement  and  cultivation  only,  nnder  a  series  of 
acts  known  as  pre-emption,  graduation,  homestead  acts,  etc. 
The  benefits  of  these  acts  are  designed  for  actual  settlers  and 
exclude  all  persons  not  sui  juris,  such  as  married  women, 
minors,  and  others  who  are  legally  incapable  of  contracting; 
meaning  of  course  married  women  and  minors  not  uneinan- 
cipated,  and  constituting  members  of  the  family  of  the  husband 
or  father.^  The  general  law,  in  so  far  as  regards  the  United 
States,  undoubtedly  enables  aliens  to  purchase  the  public  lands 
for  cash  and  at  the  ordinary  price,  subject  only  to  such  lim- 
itation as  the  particular  States  nui}^  enact.^  The  benefits  of 
the  special  laws  above  referred  to,  however,  apply  only  to 
persons  being  citizens  of  the  United  States,  or  having  tiled 
their  declarations  to  become  citizens,  as  required  by  the  nat- 
uralization laws.* 

^Scbulenberg    v.     Harriman,    21  ^jq  Stat,  at  Large,  649. 

Wall.  60;    R.  R.  Co.  v.  R.  R.  Co.,  97  ^  7  Opinions  Atty.  Gen.  051. 

U.  S.  491.  *5  Stat,  at  Large,  458. 


IISCEPTION    OF    TITLE.  109 

§  21.  Inceptive  Measures  in  the  Abstract.  The  foregoing 
brief  and  tra^nneiitarj  review  of  the  inceptive  stages  of  title, 
but  faintly  expresses  the  vastness  of  our  public  land  system 
and  conveys  no  idea  of  its  many  intricate  details  produced  by 
an  almost  innumerable  number  of  acts  of  local  or  temporaiy 
api)lication,  together  with  their  attendant  rulings,  instructions 
and  decisions  by  the  Interior  Department  and  adjudicated 
cases.^  A  full  and  accurate  knowledge  of  the  United  States 
land  svstem  is  of  the  utmost  importance  to  examiner  and 
counsel,  thongli  it  is  not  usual  or  necessary  to  incorporate 
any  considei-able  portion  of  the  inceptive  measures  in  the 
abstract.  A  brief  uote  of  the  entry  should  always  form  the 
initial  statement,  or  when  originating  in  grant  a  cori'espond- 
ing  statement  to  that  effect,  the  degree  of  fullness  of  narration 
being  optional  with  the  examiner.  The  various  steps  under 
the  pre-femption  laws  prior  to  entry  are  unimportant  and  shed 
no  light  on  the  title  after  the  certificate  has  issued.  But 
with  homestead  entries  it  is  different.  Here  the  certificate 
does  not  issue  until  five  years  after  entry  and  during  this 
period  eventful  changes  may  occur.  In  case  the  interest  should 
be  sold  for  the  benefit  of  infant  heirs,  a  certificate  issues 
to  the  purchasei',  and  the  abstract  should  show  substantially 
all  the  proceeding  from  entry  to  issue  of  certificate.  All  the 
needed  data  can  be  procured  by  obtaining  a  transcript  of  the 
Hegister's  tract  book,  something  no  well  appointed  abstract 
otiice  can  dispense  with.  The  tract  book,  further,  has  all  the 
dignity  of  other  recorded  evidence  in  matters  affecting  title.^ 
In  titles  originating  in  grant  or  confirmation  and  not  followed 
by  patent,  much  more  particularity  is  requisite  than  when 
the  patent  is  relied  on  as  the  foundation  of  title,  and  a  cor- 
responding fullness  of  narration  and  detail  is  necessary. 

^  See  Lester's  or  Zabriskie's  Land  ^  Russell  v.  Whitehead,   4  Scam. 

Laws  for  a  full   exposition  of  those      (III.)  7. 
acts  and  decisions. 


CHAPTER  IX. 


INITIAL    STATEMENTS. 


§  1.  The  government  entry.  §  5,  Town  site  entries. 

2.  The  donative  act.  6.  The  Receiver's  receipt. 

3.  Continued — Section  sixteen.  7.  State  lands. 

4.  Coiifinnations.  8.  The  root  of  title. 

§  1.  The  Government  Entry.  Wlieriever  the  abstract  goes 
back  to  the  foundation  of  the  title,  it  should  always  commence 
with  a  brief  note  of  the  original  entry  of  the  land  at  the  United 
States  Land  Office  of  the  district  in  which  the  same  is  located, 
giving  the  name  of  the  person  so  entering  it,  together  with 
the  date,  and  any  other  particulars  that  may  appear  and  are 
pertinent.  Should  the  entry,  from  any  cause,  have  been  can- 
celed and  re-entry  made,  that  fact  should  also  be  noticed, 
giving  date  of  cancellation  and  re-entry.  Where  parties  have 
negligently  omitted  tc  record  the  Receiver's  receipt  or  patent, 
as  is  frequently  the  case,  this  forms  tlie  only  item  of  informa- 
tion relative  to  the  origin  of  the  title,  and  will  be  of  great 
service  to  counsel  in  his  investigations,  as  well  in  determining 
the  rights  of  the  parties,  as  in  supplying  missing  links  of  evi- 
dence. The  entry  itself,  if  valid,  gives  the  right  to  the 
Receiver's  certificate  of  pui'chase,  and  creates  an  equitable 
interest  in  the  land.^  It  is  useful  in  showino:  the  inception  of 
title,  and  forms  a  symmetrical  initial  to  the  histoiy  which 
follows.  No  particular  form  is  necessar}^  so  long  as  the  facts 
are  substantially  stated,  and  the  following  example  will 
suffice: 

The  northeast  quarter  of  Section  six,  Toion  one  north, 
Range   tioenty -three,  east   of  the  3d  P.  J/.,  was  entered  hy 

'  Levi  V.  Thompson,  4  How.  17. 

(110) 


INITIAL    STATEMENTS.  Ill 

Euhert  Van  Sands,  3fay  11^,  1S30,  at  the  U.  S.  Land  Office 
at  Milwaukee,  Wisconsin.  Certificate,  No.  31^1.  {Certificate 
canceled,  and  re-entry  made,  June  10,  1S30.  Certificate, 
No.  800.) 

This,  of  course,  applie?;  only  when  the  Land  lias  been  en- 
tered in  tlie  usual  manner,  and  never  includes  the  sections  16 
or  36,  or  such  other  lands  as  may  have  been  selected  by  the 
State  in  lieu  thereof,  and  whicli  are  commonly  known  as  the 
"  school  sections."  Nor  would  lands  donated  for  specific  pur- 
poses, as  to  assist  in  the  construction  of  internal  improve- 
ments, etc.,  be  susceptible  of  this  treatment.  In  such  cases 
a  recital  of  the  orif^jinal  grant  should  constitute  the  initial 
entry. 

§  2.  The  Donative  Act.  "When  the  inception  of  title  is 
through  some  grantof  Congress,  though  the  immediate  grants 
are  from  the  State,  the  pi-eliminary  measures  by  which  the 
State  acquired  its  right  to  convey  should  appear  nj)on  the  ab- 
stract. x\  grant  of  public  land  bj  statute  is  the  highest  and 
strongest  form  of  title  known  to  our  law,'  and  vests  in  the 
grantee  all  the  title  which  the  United  States  had  at  the  time 
of  the  grant  or  may  afterward  acquire  ;  subject,  however,  to 
the  conditions  and  restrictions  appended  thereto  ;  and  this, 
although  a  patent  may  afterward  issue.^  Tiie  original  grant, 
or  so  much  as  may  be  necessary  to  show  the  conveyance, 
siiould  therefore  form  the  initial  statement  of  an  abstract  of 
land  so  derived.  Coupled  with  this  should  appear  so  much  of 
the  official  action  of  the  State  authorities  as  will  show 
an  acceptance  on  their  part  and  a  compliance  with  such 
conditions  as  may  be  imposed  by  the  granting  act.  These 
need  not  be  set  out  at  length  ;  brief  references  are  suffi- 
cient, providing  all  the  essential  steps  are  substantially 
noted.  Public  grants  to  States  ai*e  usually  of  specified 
quantities    but    of    unascertained   location,   which    is   deter- 

1  11  Opinions  Atty.  Gen.  47;  Dous-  Hall».  Jarvis,  65111.  .302;  Challefoux 

man  v.  Hooe,  3  Wis.  466.  v.  Ducharme.  4  Wis.   554;  but  see 

^9    Opinions     Atty.    Gen.    346;  Foley  r.  Hairison,  15  How.  433. 
Thompson    v.  Prince,   67    111.  281; 


112  ABSTRACTS    OF   TITLE. 

mined  by  selection  in  accordance  Avitli  the  terms  of  tl)e 
grant.  A  sta  enient  similar  to  the  following  should  pieface 
tiie  abstract  in  such  cases: 

Section  seven.  Town  thirty-nine  norths  Range  fourteen 
east  of  the  3d  Princijyal  Meridian,  with  other  lands,  was 
selected  hy  the  Comimssloner  of  the  General  Land  Office,  un- 
der the  direction  of  the  President,  as  a  portion  of  tJiose  tracts 
granted  hy  the  United  States  to  the  State  of  Illinois  hy  Act 
of  Congress  approved  March  ^,  18i37,  entitled  '■'■An  Act  to 
grant  a  quantity  of  land  to  the  State  of  Illinois  for  the  pur- 
pose of  aiding  in  opening  a  Canal  to  connect  the  waters  of 
the  Illinois  River  with  those  of  Lake  Michigan.''^ 

Selection  approved  hy  the  President  May  ^1,  1830. 

These  statements  are  nsiuilly  short,  froin  the  fact  tliat  the 
title  at  this  stage  is  usually  unquestioned,  and  in  tlie  older 
States  has  acquired  all  the  elements  of  permanency  from  long 
acquiescence  and  the  effluxion  of  time.  The  examiner  will 
find  no  difficulty  in  adapting  internal  im])rovement  or  rail- 
road grants  from  the  hints  above  stated,  and  further  illustra- 
tions are  not  deemed  necessary.  A  selection  by  the  State  has 
the  effect  of  an  entry  of  tlie  land,  and  withdraws  the  tract 
from  further  disposal,  unless  the  selection  shall  be  subse- 
quently rejected,  subject,  of  course,  to  the  perfection  of  any 
pre-existing  valid  pre-emption  claims.^ 

§  3.  The  Same — Section  Sixteen.  The  immediate  title 
to  section  sixteen,  and  in  States  west  of  the  Missouri  river 
section  thirty-two  as  well,  is  derived  from  the  State,  although 
the  original  title  comes  from  the  Federal  Government.  These 
sections,  in  pursuance  of  the  cherished  policy  of  the  gov- 
ern m  n  ,  are  specifically  appropriated  to  the  use  of  common 
schools,  which  appropriation  or  reservation  forms  a  part  of 
the  compact  by  which  the  State  is  admitted  to  the  Union, 
and  when  the  lands  are  surveyed  and  mai-ked  out  the  title  of 
the  State  attaches,  and  if  there   be  no  legal  impediment,  be- 

*  See  Instructions  Commr.  Gen.  Land  Office,  Jan.  5,  1872. 


TNTTTAL    STATEMENTS.  113 

comes  a  le£>;al  title/  Where  such  section  has  been  sold  or 
otherwise  disposed  of,  other  lands  equivalent  thereto  and  as 
contiguous  as  may  be,  are  granted  in  their  stead,  such  selec- 
tion being  known  as  lieu  lands;  the  act  of  selection  of  a  sec- 
tion in  lieu  of  section  sixteen,  is  that  by  which  the  tract  be- 
comes appropriated  for  school  purposes.'^  A  formal  introduc- 
tion, therefore,  of  land  in  section  sixteen  or  thirty-six,  would 
read  somewhat  as  follows: 

Section  sixteen,  Town  one  north,  Range  thirty-one  east, 
was  granted  by  the  United  States  to  the  State  of  Michigan 
for  the  use  of  schools,  by  act  of  Congress,  June  23,  1836, 
providing  for  the  admission  of  Michigan,  as  a  State  of  the 
Union,  and  accepted  by  the  State  of  Michigan  by  act  of 
Legislature  approved  July  25,  1836. 

Where  section  sixteen  as  returned  by  the  survey  is  found  to 
be  occupied  by  pre-emption  settlements,  made  under  the  law 
permitting  settlements  on  unsnrveyed  lands,  or  where  the 
land  has  been  otherwise  disposed  of,  or  prior  rights  attached 
and  a  selection  of  lieu  lands  is  made,  the  preliminary  note 
must  show  the  facts  of  selection,  confirmation,  etc.,  necessary 
to  bring  it  within  the  law  vesting  the  title,  thus: 

The  northeast  quarter  of  Section  seventeen,  Toron  ten 
north.  Range  twenty-two  east,  was  selected  by  the  Secretary 
of  the  Treasury  in  lieu  of  land  in  section  sixteen,  by  virtue 
of  an  act  of  Congress,  approved  June  15^  18Jf.Ji,,  and  entitled 
''^An  Act  to  authorize  the  selection  of  certain  school  lands 
in  the  Territories  of  Florida,  Iowa  and  Wisconsin,"  and 
was  granted,  by  the  United  States  to  the  State  of  Wisconsin 
for  the  use  of  schools,  by  act  of  Congress  approved  August 
6,  18Ji.6,  entitled  '^An  Act  to  enable  the  people  of  Wisconsin 
Territory  to  form  a  Constitution  and  State  government,  and 
for  the  admission  of  such  State  into  the  Union,"  and  ac- 
cepted by  the  State  of  Wisconsin  by  the  Constitution  framed 
February  1, 18.^8. 

'  Cooper  V.  Roberts,  18  How.  173.  ^  2  Op.  Atty.   Gen.  360. 

8 


llrt  ABSTRACTS    OF    TITLE. 

§  4.  Confirmations.  la  the  West  and  Southwest,  tlie  title 
to  land  rests,  in  nianj  cases,  upon  eonfirnied  claims  of  inchoate 
rights  derived  from  the  government's  owning  the  land  ])rior 
to  the  conquest  or  cession,  the  method  of  confirmation  differ- 
ing considerably  with  the  locality.  The  rights  of  parties 
claiming  under  titles  from  the  Spanish  or  Mexican  Govern- 
ments are  determined  by  special  commissions  appointed  for 
the  purpose,  or  by  the  United  States  courts,  and  such  deter- 
minations are  usually  followed  by  patent.  Mexican  grants 
were  made  by  the  governors  of  the  Territories  in  conformity 
with  laws  on  that  subject,  and  a  document  signed  by  the 
governor  served  as  the  basis  of  title,  while  maps  of  the  lands 
granted  and  circumstantial  reports  were  preserved  in  the 
archives  of  the  supreme  government.  A  person  claiming 
under  these  grants  is  entitled  to  a  patent  from  the  United 
States  whenever  his  claim  has  been  confirmed  by  the  com- 
missioners, the  District  Court,  or  the  Supreme  Court,  provid- 
ing his  proof  of  confirmation  is  accompanied  by  a  survey  cer- 
tified by  the  surveyor  general.  But  neither  the  decree  of  the 
courts,  nor  the  survey,  nor  the  patent,  is  conclusive  on  any- 
body but  the  government  and  the  patentee.  The  rights  of 
third  parties  are  expressly  saved  by  act  of  Congress,  and  those 
who  claim  a  title  adverse  to  the  patentee  have  still  a  chance 
to  establish  it  in  the  proper  courts  of  the  State.*  Whenever 
practicable,  the  decree  of  confirmation,  or  reference  to  it, 
together  with  a  note  of  the  survey  and  approval  of  the  sur- 
veyor general,  should  form  the  initial  statement  and  precede 
the  patent.  The  territory  lying  north  of  the  Ohio  River  and 
west  of  the  Alleghanies,  and  extending  to  the  Mississippi, 
was  claimed  by  Yirginia  previous  to  1776  to  be  within  her 
chartered  limits,  but  was  not  reduced  to  her  possession  until 
the  war  of  the  Revolution.  Previous  to  that  time,  however, 
numerous  settlements  had  been  made  within  that  portion 
which  at  present  comprises  the  States  of  Indiana  and  Illinois, 
consisting  principally  of  French  inhabitants  from  Canada, 
who   held    the   lands    they  occupied  under  concessions   from 

'  See  Instructions  and  Opinions,  1859;  Moore  v.  Wilkinson,  13  Cal. 
Atty.  Gen.  Sept.  29,  1859,  Nov.  9,      478. 


INITIAL    STATEMENTS.  115 

French  and  English  authorities.  The  possession  and  titles  of 
these  peoj)le  were  respected  by  Virginia,  and  on  her  cession 
of  the  territory  to  the  United  States  she  expressly  stipulated 
for  their  confirmation,  which  was  afterward  effected  by  suit- 
able legislation.  In  the  matter  of  pre-existing  titles,  the 
United  States  has  never  asserted  anything  more  than  a  sover- 
eign right  over  the  subject.  His  property  rights  in  and  to 
the  soil  have  never  been  interfered  with,  and  the  patent  adds 
nothing  to  the  force  of  the  confirmation.  It  is  of  value  as 
record  evidence  of  the  possession  and  title  of  the  ancestor,  and 
of  the  recognition  and  confirmation  of  such  title  by  the  United 
States.  It  obviates  controversies  at  law  respecting  the  land, 
and  becomes  an  instrument  of  quiet  and  securitv.  In  the 
legislation  of  Congress,  a  patent  has  a  double  operation.  It 
is  a  conveyance  by  the  government  when  the  government  has 
any  interest  to  convey,  but  where  it  is  issued  upon  the  con- 
firmation of  claim  of  previously  existing  title  it  is  docu- 
mentary evidence,  having  the  dignity  of  a  record  of  the  exist- 
ence of  that  title,  or  of  such  equities  respecting  the  claim  as 
justify  its  recognition  and  confirmation.  The  instrument  is 
not  the  less  efficacious  as  evidence  of  previously  existing 
rights,  because  it  also  embodies  words  of  release  or  transfer 
from  the  government.' 

§  5.  Town  Site  Entries.  It  frequently  happened  that  the 
advancing  tide  of  immigration,  not  only  pushed  forward  the 
adventurous  pioneer  and  agriculturist  beyond  the  line  of  the 
public  surveys,  but  in  many  cases  whole  communities  settled 
and  formed  a  town  or  village.  These  settlements,  sometimes 
on  uiisurvej-ed  and  sometimes  on  surveyed  lands,  have  been 
provided  for  by  several  acts  of  Congress.  The  first  act,  ap- 
proved July  1,  1864,  provided  for  the  founding  of  cities  or 
towns  upon  the  public  domain,  and  for  entering  the  land,  upon 
which  cities  and  towns  liad  already  been  founded.  This  was 
supplemented  by  the  act  of  March  3,  1865,  which  prescribed 
rules  where  the  lots  were  of  different  dimensions,  and  not 
uniform.     A  further  act  approved  March  2,  1867,  authorized 

'  Langdeau  v.  Hanes,  21  Wall.  521. 


116  ABSTRACTS   OF   TITLE. 

tlie  entry  of  public  lands,  settled  upon  and  occupied  as  town 
sites  in  trust  for  the  several  nse  and  benefit  of  the  occupants 
thereof  in  prescribed  quantities  according  to  the  number  of  in- 
habitants, respectively,  in  said  towns.  It  will  thus  be  seen  that 
two  methods  exist  of  acquiring  title  to  land  in  town  sites  at  the 
inception  of  the  town.  By  the  first  method  a  privilege  both  of 
purchase  on  sale,  and  pre-emption  at  minimum  figures  are  per- 
mitted, provided  certain  preliminary  conditions  are  complied 
with.  The  requisites  consist  of  filing  with  the  recorder  a  plat  of 
the  town,  describing  its  exterior  boundaries  according  to  the 
lines  of  the  public  surveys,  when  said  surveys  have  been  exe- 
cuted. The  plat  must  also  exhibit  the  name  ofthe  city  or  town; 
the  streets,  squares,  etc.,  together  with  the  size  and  measure- 
ment of  each  municipal  subdivision.  The  map  to  be  verified  by 
the  oath  ofthe  party  acting  for  or  on  behalf  of  the  town.  "When 
the  town  is  within  the  limits  of  an  organized  land  district,  a  sim- 
ilar copy  must  be  filed  with  the  Register  and  Receiver,  and  a 
copy  must  be  forwarded  within  one  month  after  filing  with  the 
recorder,  to  the  General  Land  Office.  Patents  issue  for  all  lots 
under  the  provisions  of  this  act,  the  price  of  the  lots  being 
graded  by  size,  etc.  The  second  method  is  under  the  act  of 
1867,  which  grants  to  tlie  inhabitants  of  cities  and  towns  on 
the  public  lands  the  privilege  of  entering  the  lands  occupied 
as  town  sites  at  the  minimum  price  of  $1.25  per  acre,  through 
the  corporate  authorities  of  such  towns  and  cities,  or  the 
judges  of  the  county  courts  acting  as  trustees  for  the  occupants 
thereof,  according  to  their  respective  interests.  Either  method 
may  be  resorted  to,  but  the  inhabitants  are  limited  to  one  or 
theother  of  the  modes  prescribed.  The  preliminary  measures 
attending  the  inception  of  the  title  of  town  and  city  property 
when  acquired  under  the  acts  above  noted,  should  appear 
with  reasonable  de^rree  of  detail.  If  by  the  former  method, 
the  plat,  or  so  much  as  may  be  necessary  to  show  the  property  in 
question,  should  be  given.  The  preliminary  statement  in  this 
case  would  consist,  in  addition  to  the  plat,  of  a  resume  of  the 
steps  taken,  with  dates,  etc.  In  the  latter  case  it  would  differ 
but  slightl}'  from  an  ordinary  entry.^ 

»Se3  acts  above    noted,  13  U.  S.  Stat.    343;  13  U.  S.   Stat.   529;  In- 


INITIAL    STATEMENTS.  117 

§  6.  The  Receiver's  Receipt.  The  receipt  issued  by  the 
Tleceiver  of  a  district  land  office,  though  constituting  no 
title,  is  evidence  of  an  equitable  interest,  which,  in  many  of 
the  States,  is  accorded  a  dignity  and  effect  equal  to  a  complete 
investure  by  patent.  Upon  the  strength  of  this  receipt,  large 
investments  are  made  and  great  improvements  commenced, 
while  the  property  frequently  passes  through  many  hands 
before  a  patent  has  been  issued,  [n  many  cases  the  patent  is 
never  called  for  or  formally  delivered,  the  receipt  being  relied 
upon  as  sufficient  evidence  of  title  to  warrant  the  largest 
expenditures  and  the  most  ample  covenants  ot  title.^  In  a 
certain  sense  this  is  true;  for  though  the  patent  is  the  superior 
and  conclusive  evidence  of  legal  title,^  the  receipt  so  far  pre- 
cludes the  government  as  to  invalidate  a  second  sale  of  the 
land,  and  the  patent,  when  issued  by  relation,  extends  back  to 
the  time  of  the  purchase  so  as  to  cut  oft"  intervening  claim- 
ants.* In  the  courts  of  the  United  States,  however,  an  equi- 
table title,  however  strong,  can  not  be  set  up  at  law  to  defeat 
the  legal  title  by  patent,*  and  an  abstract  which  fails  to  dis- 
close such,  reveals  a  vital  defect  that  should  deter  the  pur- 
chaser from  consummating  the  sale  until  it  has  been  remedied. 
The  receipt  of  the  receiver  x^i prhua fade  evidence  that  the 
law  has  been  complied  witli,^  and  under  the  rulings  of  State 
courts  has  been  held  to  convey  the  entire  beneficial  interest, 
leaving  nothing  in  the  government  but  a  naked  trust  of  the 
fee.^  The  instrument  is  very  informal,  and  its  main  provisions 
may  be  shown  as  follows: 

structions  Commissioner,    Ails'.  '^^»  436. 

1864;  Apr.  26,  1865;  Sept.  21,  1868.  » Stark    v.    Starrs,    6  Wall.   402; 

Consult  also,  Lester's  or  Zabriskie's  Magvuder  v.  Esmay,  35  Ohio  St.  221. 

Land  Laws.  *Bairdt?.  Wolf,  4  McLean,   549; 

*  A  patent  issued  in  tlie  name  of  Hooper  v.  Scheimer,  2  >  How.  235; 

the  purchaser  inures  to  the  benefit  Bagnell  v.  Broderick,  13  Pet.  4:36. 

of  the  grantee  under  a  deed  executed  *  Allison  v.  Hunter,  9  Mo.  402. 

before  the  paten b  issued;   Magruder  *  Waters  v.  Bush,  42  Iowa,  255, 

V.  Esmay,  35  Ohio  St.  221.  and  see  Worth  r.  Branson,  98  U.  S. 

2Bagnell   v.    Broderick,  13   Pet.  118. 


118  ABSTRACTS    OF   TITLE. 

Receiver  )  DuiMeate  receipt^  No.  5,08^. 

to  \  Dated  May  1,  1839. 

William  Bohinsmr.    )  Eecorded  May  31,  1839. 
Volume  "  A  "  of  deeds,  page  W8.     Acknowledges  payment 
in  full   {%190.00)  for   the  northeast  quainter  of  Section  ten, 
Toton  07ie  north,  Range  twenty-three^  east  of  3d  P.  Jl/.,  Mil- 
waukee land  district. 

The  foregoing  statement  immediatelj  follows  tlie  note  of 
entry,  and  to  preserve  chronological  sequence,  precedes  the 
j)atent  when  that  instrument  is  shown.  In  receipts  and 
patents,  no  special  designation  of  the  pi'operty  with  reference 
to  political  divisions  is  made,  but  same  is  described  as  of  a 
certain  land  district.  This  has  been  held  to  be  a  sufficient 
designation,  the  name  of  the  county  nf>t  being  essential,  and 
the  land  district  suthciently  indicating  the  State.' 

§  7.  State  Lands.  Lands  granted  to  the  States  for  school 
and  university  purposes,  as  well  as  grants  for  internal  im- 
provements, are  disposed  of  in  much  the  same  manner  as  the 
public  lands  of  the  general  government.  The  special  method 
of  their  disposal  is  regulated  by  express  statute  in  each  State, 
and  while  the  system  in  all  the  States  is  based  upon,  and 
closely  follows  that  pursued  by  the  general  government,  minor 
differences  of  detail  preclude  more  than  a  general  notice.  In 
some  States  the  disposal  of  the  land  is  placed  in  the  hands  of 
the  Governor  and  Secretary  of  State,  who  issue  and  sign  all 
patents  emanating  from  the  State;  in  others  it  has  been  placed 
in  the  hands  of  a  special  commission,  to  whom  are  given  the 
power  of  disposal  and  control  of  the  investment  of  the  funds 
arising  therefrom.  A  certificate  of  sale  of  State  lands  is  not 
sufficient  to  carry  the  fee,  which,  by  analogy  to  the  doctrine 
of  sales  of  federal  lands,  remains  in  the  State  until  patent  has 
issued  for  same.  It  entitles  the  purchaser,  however,  to  the 
beneficial  interest  in  the  premises,  and  is  sufficient  evidence 
of  title  to  vest  in  him  the  same  rights  of  possession,  enjoy- 
ment, descent,  transmission  and  alienation  of  the  lands  thei'ein 
described,  and   the   same  remedies  for  the  protection  of  said 

» Mapes  V.  Scott,  94  111.  379. 


INITIA.L    STATEMKNTS.  119 

riijlits,  as  apjainst  all  persons  except  the  State,  that  he  would 
possess  if  he  were  the  owner  thereof  in  fee.'  The  methods  of 
sale  are  too  widely  div^er^^ent  to  inquire  into.  Thus,  in  AVis- 
consin,  sales  of  school  lands  are  made  by  the  commissioners 
of  school  and  university  lands;  "^  in  Illinois  by  the  county 
superintendents.*  Each  State  provides  a  method  of  its  own 
with  special  officers  to  execute  the  power.  A  certificate  of 
sale  of  State  lands,  like  the  duplicate  receipt  ot*  the  receiver, 
is  informal  in  substance,  the  main  point  being  the  execution, 
by  the  proper  statutory  officer.  Its  provisions  are  usually 
prescribed  by  statute,  and  should  consist  of  a  description  of 
the  land  sold,  the  sum  paid,  and  where  only  a  portion  of  the 
purchase  money  is  paid,  the  amount  remaining  due  tliei'con, 
the  time,  place  and  terms  of  payment,  and  that  if  it  shall  be 
duly  discharged,  the  purchaser  or  his  assigns  shall  be  entitled 
to  a  patent  for  such  land.  As  this  matter,  when  followed  by 
patent,  is  only  introductory,  the  certificate  may  be  sliown 
briefly  as  follows: 


State  of  WlsGonshi 

to 

Abraham  Smith. 

Docmnent,  JVo.  300. 


Commis-v'oner's  certificate,  JSFo,  lOJ^. 
Bated  May  ^^,  1850. 
Recorded  June  1,  1850. 
Book  '-'-  A,^''  2jage%5. 


Aclcnowledges  receipt  of  %^6.50  in  {part)  payment  for  Lot 
six,  in  Town  one  north.,  Range  nineteen  east,  in  the  north- 
west quarter  of  Section  sixteen  {and  that  said  Abraham 
Smith  will  he  entitled  to  a  patent  therefor  on  payment  of 
%r36.00). 

§  8.  The  "Root "  of  Title.  The  foregoing  portion  of  this 
chapter  has  reference  only  to  well  ascertained  beginnings  of 
title,  which  may  be  traced  with  little  difficulty  from  its  source 
or  fountain  head.  In  all  the  States  west  of  the  Alleghanies, 
w^ith  possibly  the  exception  of  Kentucky  and  Tennessee,  this 
may  be  easily  accomplished,  and  a  purchaser  may  reasonably 

'  This   matter  is  purely  statutory.  of  certificates  of  purchase,  and  the 

The    reader,  for  greater    certainty,  method  of  cunducting  sales, 
will  consult  the  statutes  of  his  own  ^  r.  S.  Wis.,  1878,  106,  chap.  15. 

State,  both  as  to    the    legal    etfect         ^^.  S.  111.,  1874,  chap.  122. 


120  ABSTRACTS    OF    TITLE. 

insist  on  the  production  of  title  from  the  government.  Such, 
however,  is  not  always  done,  and  the  examiner,  from  informa- 
tion furnished  by  the  vendor,  prepares  a  preliminary  state- 
ment, resting  mainly  on  tradition,  in  which  is  recited  the 
condition  and  course  of  the  title  at  some  remote  period,  which 
is  followed  by  a  regular  examination  from  that  time,  usually 
twenty  years  or  more  prior  to  the  date  of  the  abstract.  This 
is  following  the  English  precedents,  and  is  not  without  author- 
ity in  the  United  States,  several  distinguished  American  con- 
veyances having  given  it  their  sanction.  Where  information 
is  difficult  of  access,  or  impossible  of  procurement  from  official 
or  authentic  sources,  as  is  often  the  case  in  the  original  States, 
such  a  practice  might  be  followed  as  the  only  available  method, 
leaving  the  keenness  of  counsel  to  detect  flaws,  and  call  for 
further  evidence  on  desired  points;  but  in  the  States  formed 
from  the  territories  where  the  rectangular  system  of  survey- 
ing and  registration  of  conveyances  prevails,  no  good  reason 
exists  why  a  complete  abstract  showing  the  inception  of  title 
should  not  be  produced.  Where  a  preliminary  sketch  is  given 
as  forming  the  root  of  title,  the  examiner  should  carefully 
specify  all  his  sources  of  information,  and,  if  consisting  of 
hearsay  or  tradition  only,  expressly  disavow  all  responsibility 
for  the  truth  of  the  matters  therein  recited.  No  other  safe 
course  is  open,  and  the  reader  is  apprised  at  the  outse-t  of  the 
value  to  be  placed  upon  the  statement. 


CHAPTEE  X. 

CONGRESSIONAL    AND    LEGISLATIVE    GRANTS. 

§  1.     Legislative  grants     generally      §  3.     Construction     of     legislative 
considered.  grants. 

2.     Nature  and  efiFect.  4.     Formal  requisites. 

§  1.  Legislative  Grants  Generally  Considered.  Not  a  few 
important  titles  in  the  United  States  have  their  foundation  in 
Congressional  or  legislative  grants,  and  confirmations  of  pre- 
viously existing  inchoate  or  equitable  riglits.  A  recurrence 
to  these  is  necessar}^  even  though  a  patent  may  appear,  as  in 
many  cases  the  patent  is  only  in  confirmation  of  prior  claims 
and  conclusive  only  between  the  sovereign  and  the  patentee 
or  these  in  privity  with  him.  A  grant  of  land  by  statute  is 
the  highest  and  strongest  form  of  title  known  to  our  law,'  and 
does  of  itself,  'proprio  vlgore,  pass  to  the  grantee  all  the  es- 
tate of  the  government  except  what  is  expressly  excepted.^  As 
a  primary  conveyance  it  is  not  in  general  use,  for,  as  a  rule,  the 
government  parts  with  its  title  only  by  patent,  but  when  pur- 
porting to  convey  land  in  words  of  present  grant,  it  vests  a 
perfect  and  irrevocable  title.'* 

§  2,  Nature  and  Effect.  The  United  States  or  a  State  may 
make  a  grant  of  land  by  a  law  as  effectually  as  by  a  patent  is- 
sued in  pursuance  of  a  law.  In  the  former  case  it  is  the  direct 
act  of  the  government  through  the  Legislature,  in  the  latter 
it  is  a  ministerial  act  under  the  direction  of  the  Legislature. 
A  confirmation  by  law  of  a  claim  of  title  in  public  lands  is 
to  all  intents  and  purposes  a  grant  of  such  lands,*    and  M'here 

1 11  Opinions  Att'y  Gen.  47.  Terrett  v.  Taylor,  9  Cranch,  50;  Chou- 

2  0  Opinions  Att'y  Gen.  253.  teau  v.  Eckhart,  2  How.  372. 

*  Strother  V.    Lucas,    l.'Pet.  454;  *  Challefoux  r.  Ducharme,  4  Wis. 

(12)) 


122  Ai:STRACTS    OF    TITLE. 

one  is  in  possession  of  land,  a  resolve  of  the  Legislature,  re- 
leasing them  to  him,  passes  a  title  without  any  further  act, 
except  performance  of  the  conditions,  if  any/  An  act  of  Con- 
gress, containing  provisions  clearly  indicating  an  intention  to 
pass  the  fee,  unconditionally  and  absolutely,  operates  ipso 
facto,  to  vest  the  title  in  the  grantee,^  but  if  the  grant  be 
coupled  with  a  condition  it  will  not  operate  to  vest  the  title 
until  such  condition  has  been  complied  with.*  An  act  of 
Congress  granting  land  to  one  person,  is  higher  evi<lence  of 
title  than  a  patent  of  the  sanie  laud  subsequently  issued  by  the 
ofScers  of  government  to  another  person,  and  can  not  be  de- 
feated by  such  subsequent  patent;*  thus,  titles  derived  fi'om 
the  State,  of  lands  selected  under  the  "  swamp  grant,"  will  take 
precedence  over  patents  from  the  United  States  issued  subse- 
quent to  the  date  of  the  granting  act.^  Legislative  grants 
and  confirmations  are  usually  followed  by  patent,  the  issuance 
of  which  is  specially  provided  for  in  the  granting  act,  yet  the 
patent  in  most  cases  adds  nothing  to  the  force  of  the  grant, 
but  is  merely  confirmatory  of  what  has  preceded.  If  a  claim 
be  made  to  land  with  defined  boundaries  the  legislativ^e  con- 
firmation perfects  the  title  to  the  particular  tract,  and  a  sub- 
sequent patent  is  only  documentary  evidence  of  that  title. 
If  the  claim  be  to  quantity,  and  not  to  a  specific  tract  capable 
of  identification,  a  segregation  by  survey  will  be  required  and 
the  confirmation  will  then  immediately  attach  tlie  title  to 
the  land  seo:reo^ated.®  Analoo^ous  to  the  rule  which  obtains 
in  case  of  patents,  where  there  are  two  confirmations  or  grants 
of  the  same  land,  the  elder  must  prevail,  and  will  give  the 
better    title.''     The  government,  like    an  individual,  has  no 

554;    Hall    v.    Jarvis,   65  111.    302;  *  Dousman  v.    Hooe,  3  Wis.  466; 

Langdeau  i\   Hanes,  21  Wall.  521;  Megerle  v.  Ashe,  27  Cal.  322; 

Strotherr.  Lucas,  12  Pet.  411;  Field  »    Ruigo  v,    Rotau,  29  Ark.    56; 

V.  Seabury,  19  How.  323.  Keller  v.  Brickey,  78  111.  133;  R.  R. 

'  Mayo  V.    Libby,   12   Mass.  339;  Co.  v.  Brown,  40  Iowa,  333;  Daniel 

Ryan  v.  Carter,  93  U.  S.  78.  v.  Purvis,  50  Miss.  261. 

2  Ballance  v.  Tesson,  12  111.  327;  ^  Langdeau   v.  Hanes,  21     Wall. 
Grignons,  Lessee  v.   Astor,  2  How.  521. 

319.  7  Willot  V.  Sanford,  19  How.  79; 

3  Thompson  v.  Prince,  G7  111.  281.      9  Opinions  Atty.  Gen.  253. 


CO:SGRESSIONAL    AND    LEGISLATIVE    GRANTS.  123 

power  to  witlidraw  or  annul  its  grant  ;  the  first,  if  lawful, 
must  stand,  and  the  second  can  not  operate  as  a  consequence, 
for  the  reason  that  the  grantor,  when  it  was  made,  had  no  es- 
tate to  convey.' 

§  3.  Construction  of  Legislative  Grants.  A  legislative 
grant  is  an  executed  contract,  and  as  such  is  within  the  clause 
of  the  Constitution  of  the  United  States  whicli  prohibits  the 
States  from  passing  any  law  impairing  the  obligation  of  con- 
tracts. It  can  not,  therefore,  be  destroyed,  and  the  estate  di- 
vested by  any  subsequent  legislative  enactment.  The  same 
rule  a])]>lies  with  equal  force  to  corporations  as  to  individuals, 
and  wlien  the  State  enters  into  a  contract  with  a  municipal 
corporation,  the  suburdinate  relation  of  the  corporation  ceases, 
and  that  equity  arises  which  exists  between  all  contracting 
parties.  The  control  of  the  Legislature  over  the  corporation 
can  be  exercised  only  in  subordination  to  the  principle  whicli 
secures  the  invisibility  of  contracts.^  Congressional  grants 
are  governed  by  the  same  rules,  and  a  grant  by  Congress  to  a 
State  can  not  be  recalled  at  the  will  of  Congress  any  more  than  a 
grant  to  an  individual.^  Generally,  in  a  conveyance  by  the 
sovereign  of  property  which  is  usually  the  subject  of  private 
ownership,  the  extent  of  the  thing  granted  is  to  be  ascertained 
by  the  rules  of  construction  applicable  to  private  conveyances; 
yet  in  construing  a  Congressional  grant,  it  must  be  remem- 
bered that  the  act  by  which  the  grant  is  made  is  a  law  as 
well  as  a  conveyance,  and  that  such  eifect  must  be  given  to  it 
as  will  carry  out  the  inte-nt  of  Congress;  and  that  the  rules  of 
the  common  law  must  yield  in  this,  as  in  all  other  cases  to 
the  legislative  will.*  Another  excej)tion  will  be  observed  in 
that  tlie  ordinary  rule  construing  the  grant  most  strongly 
against  the  grantor  is  liere  reversed,  and  whatever  is  not  given 
expressly,  or  very  clearly  implied  from  the  words  of  the  grant, 
is  withheld.^ 

1  11  Opinions  Atty.  Gon.  47.  ■♦R.   R.  Co.  r.  R.  R.  Co.  97  U.  S. 

^Grogan  v.  San  Francisco,  18  Cal.  491. 

590.  ^Opinions   Atty.  Gen. — ;  Mayor, 

3  Busch  V.  Donohuo,  31  Mich.  480;  etc.,  v.  R.  R.,  26  Pa.  St.  355;  R.  R. 

Rice  V.  R.  R.   Co.  1  Bl.  858.  v.  Litchfield,  23  How.  88. 


12i  ABSTRACTS    OF    TITLE. 

§  4.  Formal  Requisites.  'No  particular  terms  are  necessary 
in  a  i^rant  by  Congress  or  the  Legislature/  which  will  vary 
with  the  exigencies  of  each  particular  case.  In  preparing  a 
svnopsis  of  such  grants  the  essential  features  to  be  observed  are: 
the  title  of  the  act;  the  date  of  passage  or  approval;  the  sub- 
ject matter,  including  the  granting  words,  in  the  language  of 
the  act;  and  the  conditions  or  restrictions,  if  any,  annexed  to 
the  grant.  A  practical  example,  taken  from  the  files  will  bet- 
ter serve  to  illustrate  the  matter.  Peter  Poncin  entered  in 
due  form  a  certain  tract  of  land,  which  entry  was  afterward 
cancelled  by  the  commissiimer  of  the  General  Land  Office,  but 
not  until  Poncin  had  made  conveyances  on  the  credit  afforded 
by  the  entry.  This  cancellation  was  afterward  set  aside  by 
special  act  of  Congress  and  the  claim  of  Poncin  confirmed, 
with  a  further  direction  for  a  patent,  which  was  subsequently 
issued.  This  land  is  now  a  portion  of  the  city  of  St.  Paul, 
Minn.,  and  has  become  very  valuable.  As  the  inception  of 
this  title  is  somewhat  complicated,  a  full  detail  of  all  the 
preliminary  steps  is  of  the  utmost  importance,  and  the  ab- 
stract in  this  case  should  show:  the  original  entry  by  Poncin; 
the  subsequent  cancellation;  the  confirmatory  act  of  Congress, 
and  finally  the  patent;  the  mesne  conveyances  by  Poncin  tak- 
ing effect  by  relation.  Examples  of  the  entry  have  been  given ; 
the  confirmatory  act  would  appear  much  as  follows: 

United  States'^      "1       Act   of  Congress^   entitled  ^' An 
1   act  autho7'izing  a  patent  to  he  issued 
I   to   Peter   Poncin  for  certain  lands 
to  \  therein  described.''^ 

Approved  July  27,  185]^.. 
Recorded  August  i,  185 J),.^ 
Peter  Poncin.        J       Boole  "  6V'  page  600. 

Enacts,  That  the  entry  of  Peter  Poncin  of  the  north  half 
of  the  southeast  quarter,  and  the  south  half  of  the  northeast 

'  Cobnrn  v.  Ellenwood,  4  N.  H.  99.  ^  These  acts  rarely  appear  of  record 

2  If  desired,  this  may  read  "  Con-  in  the  county,  in   which  event  refer 

firuiation  by  the  United  States,"  as  to  the  b.ok  and  page  of  the  U.  S. 

this  example  is,  strictly  speaking,  a  Statutes. 

confirmation  rather  than  a  grant. 


CONGRESSIONAL    AKD    LKGISLATJVE    GRANTS.  125 

qijxrter  of  Section  36,  in  the  Stillwater  land  district,  Mln- 
oiffSota,  canceled  hy  the  Commissioners  of  the  General  Land 
Vfice,  he  and  same  is  hereby  allowed  and  reinstated  as  of  the 
date  of  said  entry,  so  that  the  title  to  said  lands  may  inure 
to  the  benefit  of  his  grantees  as  far  as  he  may  have  conveyed 
dame.  Provided,  that  the  purcJmse  money  shall  be  again  paid 
at  said  land  office^  and  that  thereupon  a  patent  shall  issue  in 
the  name  of  said  Peter  Poncin  for  said  lands. 

Further  enacts,  Tlutt  the  Superintendent  of  Public  Schools 
of  Minnesota  be  and  he  is  authorized  to  select  other  land  in 
lieu  thereof. 

This  is  one  of  the  few  conveyances  tliat  the  examiner  is 
justified  in  placing  on  the  abstract  when  ?ainedoes  not  appear 
of  record  in  the  county  in  which  the  land  is  situated,  and, 
where  the  records  are  silent,  reference  to  otlier  authentic 
sources  of  information  must  be  inserted  and  attention  drawn 
to  the  i'act  of  non-registry.  This  is  accomplished  in  the  first 
instance  by  referring  to  the  volume  and  page  of  the  United 
States  statutes,  and  in  the  latter  by  a  foot-note,  as  follows: 

Note. — At  the  date  of  this  examination  the  foregoing  in- 
strument is  not  of  record  in  Ramsey  county,  Minnesota. 


CHAPTER  XI. 


PATENTS. 

1. 

Patents  defined. 

§6. 

Continued. 

2. 

Patents     from     the     United 

7. 

Formal  requisites. 

States. 

8. 

Patents  from  the  State. 

3. 

Continued — Delivery. 

9. 

Continued. 

4. 

General  Land  Office  record. 

10. 

Formal   requisites    of     State 

5. 

Operation  and  effect. 

patents. 

§  1.  Patents.  A  patent  has  been  defined  as  a  grant  of 
some  privilege,  propert)%  or  aothoritj,  made  by  the  govern- 
ment or  sovereign  of  a  country  to  one  or  more  individuals, 
and  the  term,  as  originally  used  in  England,  is  said  to  have 
siofniiied  certain  written  instruments  emanating  from  the 
king,  and  sealed  with  the  great  seal.  These  instruments  con- 
ferred grants  of  lands,  honors,  or  franchises,  and  were  called 
letters  patent  from  being  delivered  open,  and,  by  way  of  con- 
tradistinction from  instruments  like  the  French  lettres  de 
cachet,  which  went  out  sealed.^  In  the  United  States,  the 
word  is  used  to  denote  those  instruments  which  secure  to 
inventors,  for  a  limited  time,  the  exclusive  use  of  their  inven- 
tions, but  when  used  in  connection  with  real  property,  it 
means  the  title  deed  by  which  a  government,  either  State  or 
Federal,  conveys  its  lands. 

§  2.  Patents  from  the  United  States.  A  patent  is  the 
highest  evidence  of  title  known  to  the  law,  and  is  conclusive 
as  against  the  government,  and  all  claiming  under  junior 
patents  or  titles  until  set  aside  or  annulled  by  some  comjietent 
tribunal.'^     "When   delivered  to  and   accepted  by  the  grantee, 

i2Bou.  Law  Diet.  298.  93;  Stoddard  v.  Chambers,  2  How. 

2  United  States  v.   Stone,  2  Wall.      284. 
525;  Strong  v.  Lehmer,  10  Ohio  St. 

(126) 


PATENTS.  127 

it  passes  tlie  full  legal  title  to  the  land,'  and  carries  with  it 
the  presumption  that  all  the  prerequisites  of  law  have  been 
complied  with.^  But  the  patent  must  show  upon  its  face  a 
regular  issue,  and  a  full  compliance  with  the  formalities  of 
law,  for  a  patent  forms  no  exception  to  the  rule,  that  the  legal 
title  to  lands  can  not  be  conveyed  except  in  the  form  provided 
bj'  law.^  The  principal  requisites  in  this  respect  have  refer- 
ence mainly  to  the  execution  and  authentication.  To  conform 
strictly  to  the  letter  of  the  law,  the  patent  must  be  signed  in 
the  name  of  the  president,  either  by  himself  or  his  duly  ap- 
pointed secretary,  sealed  with  the  seal  of  the  General  Land 
Office,  and  countersigned  by  the  recorder.  Until  all  these 
have  been  done,  the  United  States  have  not  executed  a  patent 
for  a  grant  of  lands.  Each  and  every  one  of  the  integral  parts 
of  the  execution  is  essential  to  the  perfection  of  the  patent. 
They  are  of  equal  importance  under  the  law,  and  one  can  not 
be  dispensed  witli  more  than  another.  Neither  is  directory, 
but  all  are  mandatory,  and  neither  the  signing  nor  the  seal- 
ing, nor  the  countersigning,  can  be  omitted  an}^  more  than 
the  signing  or  the  sealing,  or  the  acknowledgment  by  a 
grantor,  or  the  attestation  by  witnesses,  when  by  statute  such 
forms  are  prescribed  for  the  due  execution  of  deeds  by  pri- 
vate parties  for  the  conveyance  of  lands.* 

§  3.  Continued — Delivery.  Uidike  conveyances  between 
individuals,  a  formal  delivery  of  the  patent  is  not  essential  to 
its  validity,  nor  will  the  non-delivery  defeat  the  grant.  The 
importance  attached  to  the  delivery  of  the  deed  in  modern 
conveyancing  arises  largely  from  the  fact  that  the  deed  has 
taken  the  place  of  the  ancient  livery  of  seizin  in  feudal  times, 
when  in  order  to  give  effect  to  the  enfeoffment  of  the  new  tenant, 
the  act  of  delivering  possession  in  a  public  and  notorious 
manner  was  the  essential  evidence  of  the  investure  of  the  title 

'  Moore  v.  Robblns,  6   Otto,  530;  Young,  3  Pet.  320. 

LeRoy  v.  Jamison,  3  Sawyer,  869,  *  McGarrahan  v.  New  Idria  Min- 

2  Sweat  V.  Corcoran,  37  Miss.  513;  ing  Co.,  96  U.  S.  (6  Otto)  316. 

Hill  V.  Miller,  36  Mo.  182;  Collins  v.  *  McGarrahan  v.  Mining   Co.,  96 

Bartletfc,    44    Cal.    371;    Winters.  U.  S.  316. 
Crommolin,  18  IIow.  87;  Stringer  v. 


128  ABSTRACTS    0¥    TITI-E. 

to  the  land.  This  became  gradually  diminished  in  importance 
until  the  manual  delivery  of  a  piece  of  the  turf,  and  many 
other  symbolical  acts,  became  sufficient.  When  all  this  passed 
away  and  the  creation  and  transfer  of  estates  in  land  by  a 
written  instrument,  called  the  act  or  deed  of  the  party,  be- 
came the  usual  mode,  the  instrument  was  at  first  delivered  on 
the  land  in  lieu  of  livery  of  seizin,'  until  finally  any  deliver}'- 
of  the  deed,  or  any  act  which  the  party  intended  to  stand  for 
such  delivery,  became  eff'ectual  to  pass  the  title.'^  Ko  livery 
of  seizin,  however,  was  necessary  of  the  king's  grants,  which 
were  made  matters  of  record,  for  when  the  seal  was  affixed  to 
the  instrument  and  enrollment  of  it  was  made,  no  higher  evi- 
dence could  be  had,  nor  was  any  other  evidence  necessary  of 
this  act  or  deed  of  the  king.  Hence  Mr.  Cruise  in  his  digest 
says  :  "The  king's  letters  patent  need  no  delivery;  nor  his 
patents  under  the  great  seal  of  the  Duchy  of  Lancaster  ;  for 
they  are  sufficiently  authenticated  and  completed  by  tlie  annex- 
ino-of  the  respective  seals  to  them."  In  like  manner  wlien  a 
patent  for  public  lands  has  been  made  out  and  signed  by  the 
President,  the  seal  of  the  United  States  affixed,  and  the  instru- 
ment countersigned  by  the  recorder  of  the  land  office  and  duly 
recorded  in  the  record  book  kept  for  that  purpose,  it  becomes 
a  solemn  public  act  of  the  government  of  the  United  States 
and  needs  no  further  delivery  or  other  authentication  to  make 
it  perfect  and  valid.  In  such  case  the  title  to  the  land  con- 
veyed passes  by  matter  of  record  to  the  grantee,  and  deliver}', 
as  in  case  of  private  individuals,  is  not  necessary  to  give  effect 
to  the  granting  clause  of  the  instrument.*  Theoretically,  in 
order  that  the  patent  may  take  effect  as  a  conveyance,  it  is 
essential  that  there  be  an  acceptance  on  the  part  of  the  grantee, 
but  tlie  acts  required  to  be  done  by  him  in  the  preparation  of 
his  claim  are  equivalent  to  a  positive  demand  for  the  patent, 
and  where  the  patentee  does  not  expressly  dissent,  his  assent 

1  Shep.  Toucli.  64  ;  Coke  on  Litt.  306. 

266  b.  3  United    States    v.    Schurz,    102 

^Church  V.    Oilman,    15    "Wend.  U.  S.  378;  LeRoyr.  Jamison,  o  Saw. 

656  ;   Warren  v.    Levitt,  11  Foster  369;    Houghton  v.  Hardenberg,    53 

(N.  H.),340;  Hatch  v.  Hatch,  9  Mass.  Cal.  181. 


PATENTS.  129 

and  acceptance  are  ahvaj's  presumed  from  the  beneficial  nature 
of  the  grant/  Some  confusion  has  arisen  as  to  the  tiino 
when  a  patent  takes  effect,  that  is,  when  it  becomes  operative 
as  a  convej'ance,  and  binding  upon  both  parties,  from  not  dis- 
tinguishing between  acts  which  bind  the  government  and  acts 
which  bind  the  patentee.  No  one  can  be  compelled  by  the 
government,  any  more  than  an  individual,  to  become  a  pur- 
chaser, or  even  to  take  a  gift.  Nor  can  the  burdens  or  ad- 
vantages of  propert}^  be  thrust  upon  him  without  his  assent, 
and  the  patent  of  government,  like  the  deed  of  a  private  per- 
son, must,  in  order  to  takeelfect  as  a  conveyaTice,  and  transfer 
title,  be  accepted  by  the  grantee,  yet,  as  we  have  seen,  the  pos- 
session of  property  is  so  universally  considered  a  l)enefit,  that 
in  the  absence  of  express  dissent,  an  acceptance  is  presumed 
whenever  the  eonv^ej'ance  is  placed  in  condition  for  acceptance, 
and  this  occurs,  when  the  last  formalities  required  by  law  of 
the  officers  of  the  government  are  complied  with.  By  the 
execution,  sealing  and  recording,  open  and  public  declaration 
is  made  that,  so  far  as  the  government  is  concerned,  the  title 
to  the  premises  has  been  transferred  to  the  grantee.  The 
record  stands  in  phice  of  the  offer  for  delivery  in  the  case  of 
a  private  deed;  and  the  instrument  is  thenceforth  held  for 
the  grantee,  who  takes  in  such  case  by  matter  of  record.^ 

§  4.  General  Land  Office  Record.  Patents  do  not  come 
within  the  provisions  of  the  recording  laws  of  the  State, 
where  the  terms  of  the  statute  do  not  specilically  include  then),* 
though  it  is  usual  to  record  them  in  the  county  where  the  land 
is  situate,  and  such  registration  as  a  rule  is  expressly  permitted 
by  statute.  The  act  for  the  establishment  of  a  General  Land 
Office  provides  that  all  patents  issuing  from  that  office  "  shall 
be  recorded  in  said  office  in  books  to  be  kept  for  the  purpose," 
and  the  indorsement  of  such  record  will  always  be  found  upon 
the  patent.  This  indorsement  should  always  be  copied  by  the 
recording  officer  when  presented  for  local  registration,  and  a 

'  Pierre     Mutelle    case,     3     Op.  Green  v.  Liter,  8  Cranch,  247. 

Atty.  Gen.   654;  LeRoy  r.  Jamison,  *Moran   r.  Palmer,  13  Micb.  367; 

3  Saw.  3R9.  Curtis  v.  Hunting,  6  Iowa,  536. 

*  LeRoy  v.  Jamison,  3  Saw.  369; 


130  ABSTRACTS    OF    TITLE. 

minute  of  same  made  by  the  exanuner  wlien  prepai-iiig  tlie 
abstract.  Direct  and  easy  reference  is  thus  made  to  tlie  lii^h- 
est  source  of  infoi-mation  in  case  of  tiie  mutilation,  loss  or  de- 
Btruction  of  the  original,  though,  of  course,  recourse  may  be 
had  to  it  in  other  ways.  This  original  record  is  not  in  itself  a 
grant  of  title,  but  it  is  an  evidence  of  equal  dignity  with  the 
patent,  because,  like  the  patent,  it  shows  that  a  grant  has  been 
made.  The  record  called  for  by  act  of  Congress  is  made  by- 
copying  the  patent  to  be  issued  into  the  book  kept  for  that 
purpose,  and  such  record  as  a  matter  of  evidence  stands  in  the 
same  position  and  has  the  same  effect  as  the  instrument  of 
which  it  purports  to  be  a  copy.'  The  public  records  of  tiie 
departments  of  the  government  are  not,  like  those  kept  pur- 
suant to  ordinary  registration  laws,  intended  for  notice,  but  for 
preservation  of  the  evidence  of  the  transactions  of  the  depart- 
ment. AVhere  the  county  records  fail  to  show  a  patent,  and 
no  other  divesture  of  governmental  title  appears,  recourse 
should  be  had  to  the  General  Land  Office,  and  the  claimant's 
title  will  be  determined,  in  the  absence  of  other  circumstances, 
by  what  is  there  shown.  The  failure  to  record  the  patent  does 
not  defeat  the  grant,  but  takes  from  the  party  one  of  the 
means  of  making  his  proof.  If  the  patent  itself  can  still  be 
produced,  and  it  is  duly  executed  with  all  the  formalities  re- 
quired by  law,  the  patentee  and  his  grantees  may  still  main- 
tain their  rights  under  it.  A  perfect  record  of  a  perfect  pat- 
ent proves  the  grant,  but  a  perfect  record  of  an  imperfect  patent 
or  an  imperfect  record  of  a  perfect  patent  has  no  such  effect. 
In  such  case,  if  a  perfect  patent  has  in  fact  issued,  it  must  be 
proved  in  some  other  way  tlian  by  the  record.  The  record  of 
the  patent,  analogous  to  the  doctrine  of  registration  under 
State  laws,  is  treated  as  presumptive  evidence  of  its  delivery 
to  and  acceptance  by  the  grantee.^ 

§  5.     Operation  and  Effect.     A  patent  is  a  complete  appro- 
priation of  the  land  it  describes/  and  passes  to  the  patentee 

'  McGarrahan  r.  New  Idria  Min-  insr  Co.,  6  Otto,  316;   LeRoy  v.  Jam- 

ing  Co.,  6  Otto,  316;  Sands  v.  Davis,  ison,,3  Sawyer,  369. 

40  Mich.  14.  3  Stringer's  Lessee ».  Young,  3  Pet. 

^McGarrahan  v.  New  Idria  Min-  320. 


PATENTS.  131 

all  the  interest  of  the  United  States,  whatever  it  may  he,  in 
everything  connected  with  tlie  soil,  or  forming  any  portion  of 
its  bed,  or  fixed  to  its  surface;  in  short,  in  everything  em- 
braced within  the  term  "  land."'  It  is  conclusive  evidence  of 
the  right  of  the  patentee  to  the  land  described  therein,  not 
onl}'  as  between  himself  and  the  government,  bat  as  between 
himself  and  a  third  person,  who  has  not  a  superior  title  from 
a  source  of  paramount  proprietorship.^  When  issued  to  a 
confirmee  of  a  foreign  grant,  it  operates  like  the  deed  of  any 
other  grantor,  and  passes  only  such  interest  as  the  govern- 
ment possessed,  the  deed  taking  effect  by  relation,  from  the  in- 
itiation of  the  series  of  proceedings  for  confirmation  and  of 
wliich  it  forms  the  last  act*  But  as  the  record  of  the  gov- 
ernment of  the  existence  and  validity  of  the  grant,  it  estab- 
lishes the  title  of  the  patentee  from  the  date  of  the  grant,  such 
title  de])ending,  up  to  the  issuance  of  the  patent,  upon  the 
character  of  the  grant  and  the  proceedings  of  the  former  gov- 
ernment in  reference  to  it.*  As  such  record,  with  respect  to 
the  title  of  the  patentee  existing  at  the  date  of  the  cession  of 
the  foreign  territory,  it  is  conclusive  evidence  of  title  in  the 
patentee  at  the  time  the  jurisdiction  of  the  subject  passed 
from  the  foreign  government  to  the  United  States.^  "  The 
patent,"  says  the  court  in  Leese  v.  Clark,  "is  the  evidence 
which  the  government  furnishes  the  claimant  of  its  action 
respecting  his  title.  Before  it  is  given,  numerous  proceed- 
ings are  required  to  be  taken  before  the  tribunals  and  officers 
of  the  government;  and  it  is  the  last  act  in  the  series,  and 
follows  as  the  result  of  those  previously  taken.  It  is  record 
evidence  of  the  government's  action.  By  it,  the  government? 
representing  the  sovereign  power  of  the  nation,  discharges  its 
political  obligations  under  the  treaty  and  law  of  nations.  By 
it,  the  sovereign  power,  which  alone  could  determine  the  mat- 
ter, declares  that  the  previous  grant  was  genuine;  that  the 
claim  under  it  was  valid,  and  entitled  to  recognition  and  con- 

'  Fremont  v.  Flower,  17  Cal.  199.  *Tescheraacher  v.  Thompson,    18 

2  Waterman  v.  Smith,  13    al.  373.  Cal.  11. 

"Yount    r.    Howell,  14  Cal.  465;  '  Leese  r.  Clark,  20  Cal.  387. 
Leese  v.  Clark,  18  Cal.  535. 


132  ABSTRACTS    OF   TITLE. 

firination  by  tlie  law  of  nations  and  the  stipulations  of  tlic 
treaty;  and  that  the  grant  was  located,  or  nii,^ht  have  Ix3en  lo- 
cated, by  the  former  government,  and  is  correctly  located  b}'  the 
new  government,  so  as  to  embrace  the  premises  as  they  are  sur- 
vej'ed  and  described."*  A  patent  issued  on  a  confirmed  for- 
eign grant,  is,  therefore,  in  the  nature  of  a  conveyance  bj  way 
of  quitclaim.  It  is  conclusive  only  as  between  the  parties 
thereto,  and  is  evidence  that  as  against  the  United  States,  the 
validity  of  the  grant  has  been  established.^ 

§  6.  Continued.  The  Government  of  the  United  States 
has  a  perfect  title  to  the  public  land  and  an  absolute  and  un- 
qualified right  of  disposal.  Neither  State  nor  territorial  leg- 
islation can  in  any  manner  modit'y  or  affect  the  right  which 
the  government  has  to  a  primary  disposal;  nor  can  such  legis- 
lation deprive  the  grantees  of  the  United  States  of  the  posses- 
sion and  enjoyment  of  the  property  granted  by  reason  of  any 
delay  in  the  transfer  of  the  title  after  the  initiation  of  proceed- 
ings for  its  acquisition.'  Whether  the  title  to  a  portion  of 
the  public  lands  has  passed  from  the  United  States  depends 
exclusively  upon  the  laws  of  the  United  States;  when  it  has 
passed,  it  then  becomes  subject  to  State  laws.*  These  state- 
Tnents  acquire  additional  importance  from  the  fact  that  in  a 
majority  of  the  "Western  States  the  entry  has  been  recognized 
as  tlie  basis  of  a  legal  title,  and,  in  actions  of  ejectment,  has 
frequently  been  received  as  snch;  but  in  the  federal  courts  the 
patent  is  held  to  be  the  foundation  of  title  at  law,  and  neither 
party  can  bring  his  entry  before  the  court*  A  purchaser 
from  one  holding  under  a  patent  is  not  bound  to  look  behind 
the  patent  to  learn  if  it  was  properly  issued  to  the  one  entitled 
to  it,**  for  the  instrument  is  in  itself  presumptive  evidence 
that  all  prior  proceedings  are  legal,'  but  every  purchaser  is 
presumed  to  have  notice  of  any  defect  of  title  apparent  upon 

1  Leese  v.  Clark,  20  Cal.  387.  ^  McArthur  r.  Browder,  4  Wheat. 

2  Adara  v.  Norris,  103  U.  S.  591.  488;  Fenn  v.  Holmes,  21   How.  481. 

3  Union  Mill,  etc.,  Co.  v.  Ferriss,  2  *Schnee  v.  Schnee,  23  Wis.  377. 
Sawyer,  176;  Gibson  v.  Chouteau,  13          '  Barry  v.  Gamble,  8  Mo.  88;  Win- 
Wall.  92.  ter  v.  Crommelin,  18  How.  87;  Striu- 

*  Wilcox  V.  Jackson,  13  Pet.  498.      ger  v.  Young,  3  Pet.  320. 


PATENTS.  133 

its  face.'  A  patent  issued  to  a  fictitious  person  is  a  nullity,"'' 
but  the  heirs  of  a  deceased  person  will  take  a  valid  title  to 
the  land  so  conveyed  to  a  deceased  ancestor/ 

§  7.  Formal  Requisites.  As  has  been  seen,  less  formality 
is  required  in  grants  from  the  sovereign  than  in  deeds  be- 
tween individuals,  the  main  essentials  consisting  of  the  proper 
execution.  The  instrument  usually  consists  of  an  acknowl- 
edgment of  payment  for  the  land  granted,  and  a  conveyance 
in  general  terms  with  a  description  conforming  to  the  field 
notes  of  the  government  survey.  This,  with  the  execution,  is 
all  that  is  found  in  the  average  patent,  particularly  when 
issued  to  a  purchaser  in  the  regular  course  of  disposition 
according  to  the  prescribed  legal  formulas.  The  abstract  of 
such  an  instrument  is  as  simple  as  the  original,  and  would 
cover  all  the  essential  points  if  made  as  follows: 


United  States 
to 

Satnuel  S.  Greene. 


Patent. 

Certificate,  No.  59.0. 
Dated  Feb.  i,  1800. 
Recorded  Feb.  25,  18G0. 
Book  15,  jpage  90. 


Grants,  The  Northeast  quarter  of  Section  ten.  Town  two 
North,  Range  twenty -three,  East  of  3d  P.  M.,  Milwaukee 
Land  District. 

General  Land  Office,  record  100,  520. 

Where  the  patent  is  issued  in  pursuance  of  a  confirmation 
or  act  of  Congress,  the  matter  of  inducement  will  usually  be 
found  immediately  preceding  the  granting  clause,  and  in  such 
case  a  brief  recital  should  be  made  in  the  abstract  setting  out 
the  substance  or  purport  of  the  matter  of  inducement. 

§  8.  Patents  from  the  State.  Tlie  huuls  belonging  to  the 
State  are  distinguishaule  into  two  general  classes:  1st.  Those 
which  it  owns  by  virtue  of  grants  from  the  United  States, 
2d.  Those  which  it  owns  by  reason  of  its  sovereignty.  The 
original  thirteen  States  and  Texas  entered  the  Union  as 
landed  proprietors.     In  the  remaining  States,  with  but  a  few 

1  Bell  V.  Duncan,  11  Ohio,  192.  «  Galloway  v.  Finley,  12  Pet.  26. 

2  Thomas  v.  Wyatt,  25  Mo.  24. 


13  i 


ABSTKACTS    OF    TITLE. 


exceptions,  as  Yennont,  wliose  territory  was  claimed  by  New 
York  and  New  Hampshire,  etc.,'  the  oripjinal  title  to  the  soil 
was  in  the  general  government.  The  States  entering  the 
Union  as  sovereign  j)roprietors  claim  original  and  ultimate 
title  in  all  tlieir  lands,  while  tiie  class  of  lands,  in  States 
formed  from  the  territories,  belonging  to  the  State  by  reason 
of  its  sovereignty,  includes  only  tlie  shores  of  the  sea,  and  of 
its  bays  and  inlets.  Such  lands,  called  ''  marsh  "  or  "  tide" 
lands,  are  sucli  as  are  covered  and  uncovered  by  the  ebb  and 
flow  of  the  tide,  but  are  susceptible  of  reclamation,  so  as  to  be 
made  valuable  tor  agricultural  or  other  purposes.'^  This  doc- 
trine of  title  by  sovereignty  also  prevails  in  many  of  the  in- 
land States,  and  is  applied  to  the  navigable  streams  upon  the 


'  Kentucky  was  part  of  Virginia, 
Tennessee  of  North  Carolii  a,  and 
Maine  was  claimed  by  Massachu- 
setts. The  territory  "  northwest  of 
the  river  Ohio"  was  originally 
claimed  by  Virginia,  and  was  con- 
veyed to  the  United  States  by  the 
deed  of  cession  of  March  1,  1784,  as 
a  common  fund  for  the  use  and 
benefit  of  all  the  States,  "  upon  con- 
dition that  the  tei-ritory  so  ceded 
shall  be  laid  out  and  formed  into 
States,  containing  a  suitable  extent 
of  territory,  not  less  than  100,  nor 
more  than  150  miles  square,  or  as 
near  thereto  as  circumstances  will 
admit;  and  that  the  States  so  formed 
shall  be  republican  States  and  ad- 
mitted members  of  the  Federal 
Union,  having  the  same  rights  of 
sovereignty,  freedom  and  independ- 
ence as  the  other  States."  The 
State  of  Georgia,  by  deed  of  cession 
dated  April  24,  1802,  substantially 
the  same  as  the  Virginia  cession, 
conveyed  the  territory  forming  the 
present  State  of  Alabama.  The  re- 
maining territory  was  acquired  by 
purchase    and    conquest.     The  ces- 


sions of  Georgia  and  Virginia  were 
accepted  by  the  United  States,  and 
the  municipal  eminent  domain  held 
as  a  trust  for  the  new  States  to  be 
formed  in  conform!  y  to  the  deeds  of 
cession,  the  details  to  b^  regulated 
by  the  act  of  Congress  known  as  the 
ordinance  of  1787.  Upon  the  ad- 
mission of  the  new  States  nothing 
remained  to  the  United  States,  ac- 
cording to  the  terms  of  the  agree- 
ment, but  the  public  lands,  and  upon 
their  disposal  the  power  of  the  gen- 
eral government  over  these  lands,  as 
property,  also  ceased,  leaving  the 
State  in  undisputed  sovereignty,  in- 
cluding the  ownership  and  dominion 
of  her  navigable  waters  and  the  soil 
under  them.  See  Pollard  i'.  Hagan, 
3  How.  (U.  S  )  212;  Freedman  v. 
Goodwin,  1  McAlister,  142;  Ward  v. 
Mulford,  32  Cal.  365;  Farrish  v.  Coon, 
40  Cal.  33. 

2  People  V.  MoiTill,  26  Cal.  336; 
Ward  V.  Mulford,  32  Cal.  365;  Simp- 
son V.  Neil,  8  J  Pa.  St.  183;  Coburn 
V.  Ames,  52  Cal.  385;  Hinman  /•. 
Warren,  6  Oreg.  408;  Pollaid  t'. 
Hagan,  3  How.  (U.  S.)  212. 


PATENTS.  135 

borders  and  within  the  boundaries  of  the  State.*  The  State 
can  make  no  disposition  of  the  lands  it  holds  by  virtue  of  its 
sovereiontN'  prejudicial  to  the  riglits  of  the  public  to  use  them 
for  navigation  and  fisherj^,  but  it  may  dispose  of  them  for  the 
purpose  of  promoting  the  interests  of  navigation,  or  of  re- 
claiming them  from  the  sea,  where  it  can  be  done  without 
prejudice  to  the  public  right  of  navigation.*  The  title  to  lands 
under  tide  waters  within  the  realm  of  England  were  by  the 
common  law  deemed  to  be  vested  in  the  king  as  a  public  trust 
to  subserve  and  protect  the  public  right  to  use  them  as  com- 
mon highways  for  commerce,  trade  and  intercourse.  The 
king,  by  virtue  of  his  proprietary  interest,  could  grant  the 
soil  so  thaf  it  should  become  private  property,  but  his  grant 
was  subject  to  the  paramount  riy;ht  of  public  use,  which  he 
could  neither  destroj^  nor  abridge.  The  laws  of  most  nations 
have  sedulousl}'-  guarded  the  public  use  of  navigable  waters 
within  their  limits  against  infringement,  subjecting  it  only 
to  such  regulation  by  the  State,  in  the  interest  of  the  public, 
as  is  deemed  consistent  with  the  preservation  of  the  public 
right.^  The  title  to  lands  under  tide  waters  in  this  country, 
which  before  the  Revolution  was  vested  in  the  kinff,  became, 
upon  the  separation  of  the  colonies,  vested  in  the  States 
within  whioh  thej'  were  situated.  The  people  of  the  State,  in 
their  right  of  sovereignty,  succeeded  to  the  royal  title,  and 
through  the  Legislature  may  exercise  the  same  powers  which, 
previously  to  the  Hevolution,  could  have  been  exercised  by  the 
king  alone,  or  by  hiin  in  conjunction  with  parliament,  subject 
only  to  those  restrictions  which  have  been  imposed  by  the 
Constitution  of  the  State  and  of  the  United  States.* 

§  9.  State  Patents — Continued.  It  will  be  seen,  there- 
fore, that  in  the  Colonial  States  and  the  territor^^  claimed  by 
them,  as  well  as  in  the  State  of  Texas,  the  original  and  para- 
mount source  of  title  is  the  State,  In  all  the  States  formed 
from    national    territory,  except  as  the  sovereign  prerogative 

^Musseri?.  Hershey,  42  Iowa,  356;  'Andrews,  J.,  in   People  v.  Ferry 

Barney    v.    Keokuk,    94  U.  S.  324;  Co.,  68  N.  Y.  71. 

Benson  v.  ^Forrow,  61  Mo.  345.  *  Lansing  v.  Smith,  4  Weud.  9. 

2  Ward  V.  Mull'ord,  32  Cal.  oG5. 


136  ABSTRACTS    OF    TITLE. 

above  mentioned  has  been  asserted,  the  patent  from  the  State 
is  only  a  mesne  conveyance  of  an  older  and  pre-existent  title, 
dependin^^  for  its  validity  npon  the  prelin^inary  steps  by 
which  the  State  acquired  ownership  to  the  soiL  In  tide  water 
States,  notably  Alabama,  California  and  Oregon,  where  the 
doctrine  of  original  title  by  virtue  of  sovereFgnty  has  been 
strongly  asserted,  a  State  patent  or  grant  may  in  some  cases 
form  the  foundation  of  a  good  and  nnassailable  title;  but  in 
the  interior,  as  well  as  in  States  bordering  on  the  great  lakes, 
where  no  perceptible  tide  is  found,  the  State,  while  exercising 
dominion  over  its  water  ways,  has  usually  conceded  the 
ownership  in  the  soil  covered  thereby  to  the  adjacent  riparian 
proprietor,  who  would  hold,  whatever  might  be  the  mesne 
conveyances,  from  the  United  States  in  virtue  of  the  original 
divesture  by  patent,  grant,  or  otherwise. 

§  10.  Formal  Requisites  of  State  Patents.  The  formali- 
ties to  be  observed  in  patents  emanating  from  the  State  have 
reference  to  the  statutory  requisites  relative  to  issuance  and 
execution,  and  while  the  instruments  closely  follow  the  forms 
adopted  by  the  national  government,  minor  ditlerences  of 
detail  will  be  found  varying  with  the  locality.  Ordinarily  a 
State  patent,  in  analogy  to  those  issued  by  the  general  gov- 
ernment, is  under  the  hand  of  the  chief  magistrate,  and 
authenticated  by  the  great  seal.  Such  a  course  is,  however, 
by  no  means  uniform,  the  statute  often  prescribing  other  and 
different  formalities.  Tlius,  in  Wisconsin,  the  commissioners 
of  school  and  university  lands  are  alone  authorized  to  convey 
such  lands,  and  that  power  can  not  be  transferred  to  others, 
hence  a  patent  issued  by  the  Governor  and  Secretary  of  State, 
although  in  conformity  to  the  general  statute  regulating 
patents,  would  be  void  and  inoperative  to  pass  the  title  to  that 
particular  class  of  lands. ^  Thus  it  will  be  seen  that  in  State, 
as  in  national  patents,  the  execution,  according  to  prescribed 
regulations,  is  after  all  the  main  point  of  inspection  in  ab- 
stracting these  documents. 

^McCabee  v.  Mazzuchelli,  13  Wis.  478. 


CHAPTER  XII. 

SURVEYS,    PLATS    AND    SUBDIVISIONS. 

§  1.  General  remarks.  §  6.  Plats  and  subdivisions. 

2.  Division  of  the  public  domain.  7.  Formal  requisites. 

3.  Subdivision  of  sections.  8.  Effect  of  registration. 

4.  Rectang-ular  surveying.  9.  Vacation  and  cancellation. 

5.  Meander  lines.  10.  Dedication  by  plat. 

§  1.  General  Remarks.  A  fair  kiiowledi^e  of  the  princi- 
ples of  surveying;  is  indispensable  to  good  work  on  the  p;irt  of 
e.xaininer  or  cunnsel.  In  tracing  devious  paths  and  intricate 
windings  of  the  title  tlirongh  the  media  of  uncertain,  ambiguous 
or  faulty  descriptions,  as  well  as  where  by  minute  subdivisions, 
and  irregular  shaped  parcels,  the  proper  location  of  the  land 
becomes  a  matter  of  careful  measurement  or  calculation, 
this  kiiuwledge  will  be  found  of  the  utmost  importance. 
A  general  knowledge  of  the  governmental  divisions  of  the 
county  is  indispensable  to  intelligent  inquiry,  and  tiie  saine 
is  generally  true  of  subsequent  subdivision  either  by  public 
authority,  as  case  of  town  plats,  or  large  subdivisions  by  indi- 
viduals. AVhere  the  examination  is  complicated  by  any  ques- 
tions arising  from  description,  counsel  should  first  familiarize 
himself  with  the  relative  position  of  the  land,  and  when  the 
examiner  has  furnished  no  plats,  can  greatly  facilitate  his  la- 
bors b}^  the  use  of  sketch  nia])S  pre]")ared  by  himself. 

§  2.  Divisions  of  the  Public  Domain.  The  public  lands 
of  the  United  States  are  ordinarily  surveyed  into  rectangular 
tracts  bounded  by  lines  conforming  to  the  cardinal  points,  ac- 
cording to  the  true  meridian.  The  largest  of  these  divisions, 
called  a  township,  is  a  body  six  miles  square,  having  refer- 
ence to  an  established  princi]:>al  base  line  on  a  true  ]):vra!iel  of 
latitude,  and  to  a  longitude  styled  a   principal  meridian,  and 

(137) 


133  AESTRACTS    OF    TITLE. 

contains  (as  near  as  may  be)  23,040  acres.  The  townsliips 
are  subdivided  into  thirty-six  tracts,  each  one  mile  square, 
called  sections,  and  contain in:^  (as  near  as  may  be)  6-40  acres. 
Any  number  or  series  of  contii^uous  townships  situate  north 
or  southof  each  other  constitute  a  range.  As  it  is  impossible 
to  strictly  follow  the  letter  of  the  law  in  regard  to  the  public 
surveys,  owing  to  the  convergency  of  the  meridians,  an  ine- 
quality develops,  increasing  as  the  latitude  grows  higher. 
The  excess  or  deficiency  is  added  to  or  deducted  from  the 
western  or  northern  ranges  of  sections  or  half  sections  in  each 
township  according  as  the  error  may  be  in  running  the  line 
from  east  to  west  or  from  north  to  south.  The  townships 
bear  numbers  in  respect  to  the  base  line,  either  north  or 
south  of  it,  and  the  ranges  bear  numbers  in  respect  to  the 
meridian  line  according  to  their  relative  position  to  it  either 
east  or  west.  The  sections  are  the  smallest  tracts,  the  out 
boundaries  of  which  the  law  requires  to  be  actually  surveyed. 
Their  minor  subdivisions  are  defined  by  law  and  are  desig- 
nated by  imaginary  lines  dividing  the  sections  into  four 
quarters  of  160  acres  each,  and  these  in  turn  into  quarter- 
quarter  sections,  of  40  acres  each.  The  thirty-six  sections 
into  which  a  township  is  subdivided  are  numbered  consecu- 
tively commencing  with  section  one  at  the  northeast  angle 
and  proceeding  west  to  section  six;  thence  proceeding  east  the 
sections  number  to  twelve  and  so  on  alternately  until  the  num- 
ber thirty-six  in  the  southeast  angle. ^  The  accompanying 
diagram  will  serve  to  illustrate  the  method  of  runnino'  the 
exterior  lines  of  townships  and  sections. 

'  See  Zabriskie's  or  Lester's  U.  S.  when  they  have   agreecl  upon  the 

Land  Laws  for  full  details  of  these  position  of  such  boundary,  and  have 

important  topics.      The  lines    and  acted  upon  it  as  the  true  line,  they 

corners  of  land  established  by  the  are  estopped  from  asserting  another 

g-overnment    surveys  when   it    was  and  a  different  line:   Yates  t;.  Shaw, 

first  surve>yed,  platted  and  recorded,  24  111.  367;  Thomas  v.  Sayles,  63  111. 

must  control,  when  they  can  be  as-  363.     But  parties  holding  simply  an 

certaiu'^d  and  identified;  but   wh^^n  agreement  that  might  ripen  into  an 

such  lines  and  corners  are  in  doubt,  equity  can  not  make  agreements  as 

and  a  matter  of  much  unceitainty  to  surveys  which  w  11  be  binding  on 

and  dispute,  the  parties  may  settle  asubsequentholder  of  the  legal  title: 

them  and  thus  end  the  dispute;  and  Sawyer  v.  Cox,  63  111.  130. 


SUKVEYS,    PLATS   AND   SUBDIVISIONS. 


139 


IN 
Town  1  T^ortli. 

6 

5 

4 

0 

2 

I 

7 

8 

9 

10 

1 1 

12 

4J 

W  '" 

i8 

17 

16 

15 

14 

13 

ti 

19 

20 

21 

22 

23 

24 

30 

29 

28 

27 

26 

25 

31 

32 

■1 '» 

34 

35 

36 

JB^SJK  link;. 


The  official  township  plats,  of  which  mention  has  already 
been  made,  furnish  all  the  information  necessary  to  a  tlior- 
oiigh  understandins;  of  each  particular  township,  and  show, 
in  addition  to  a  general  topographical  delineation  of  the  sur- 
veyed territory,  the  exact  area  of  each  section,  excesses,  defi- 
ciencies, meanders  of  navigable  streams,  islands  and  lakes, 
and  all  other  details  necessary  for  surveying  or  subdivison;  as, 
witnesses,  monuments,  section  and  quarter  section  corners,  etc. 

§  3.  Subdivision  of  Sections.  Though  the  section  is  the 
smallest  division  of  public  land,  the  lines  of  which  are  actually 
run  by  the  government  surveyors,  smaller  divisions  are  con- 
templated by  law  and  provision  is  always  made  for  their  ready 
ascertainment,  which  is  done  bv  running  true  lines  from  one 
established  point  to  another.     These  legal  subdivisions  vary 


140 


ABSTKACTS    OF    TITLE. 


fi'oin  a  quarter  section,  containing  IGO  acres,  to  a  "quarter- 
quarter"  section,  containing  but  40  acres.  The  shape  and 
area  of  the  sectional  subdivisions  will  be  better  understood, 
perhaps,  by  reference  to  the  following  diagram : 

N 


W 


40  A 

NWX 

40  A 

SO  A 

N  }4 

N  W 

t/ 

N  F  1/ 

swy. 

/4 

SE^< 

SJ^ 

40  A 

40  A 

80  A 

n 

A 
1 

U-i 

u. 

I 

* 
1 

o 

s  w  ^ 

s 

E54 
E  y2 

•S 

160  A 

80  A 

so  A 

1 

■ 

E 

i  bee.  Corner. 


See.  Corner. 


—    —    —    —SO  chains  or  one  mile. —     —    —    —    —    — > 


The  above  illustration  contemplates  onlj  an  ordinary  survey, 
where  no  obstacles  intervene  to  interrupt  the  symmetry  of  the 
map,  or  interfere  with  the  running  of  the  lines,  nor  does  it 
provide  for  deficiencies  or  excesses,  which  will  frequently 
occur  in  sections  1,  2,  3,  4,  5,  6,  7,  18,  19,  30  and  31,  the 
greatest  discrepancy  being  found  in  section  6.  The  legal 
presumption  is,  however,  that  the  section  contains  640  acres. 

The  section  and  quarter  section  corners  are  established  as 
indicated  in  the  diagram;  the  half  quarter  sections  are  not 
marked  in  the  field,  but  are  regarded  by  the  law  as  points  in- 
termediate between  the  half  mile,  or  quarter  section  corners.' 


»  Act  of  April  24,  1820. 


SURVEYS,    PLATS    AXD    SU  DDIVISIOXS. 


141 


Where  navigable  lakes,  streams,  etc.,  intercejjt  the  surveys 
they  produce  fragmentary  divisions  kriown  as  "fractional" 
sections,  quarters,  etc.,  the  divisions  of  a  fractional  section  be- 
ing also  known  as  "  lots."  Meander  corner  posts  are  estab- 
lished at  all  those  points  where  township  or  section  lines  in- 
tersect the  banks  of  such  rivers,  bayous,  lakes,  or  islands  as 
are  by  law  directed  to  be  meandered,  and  the  courses  and  dis- 
tances on  meandered  navigable  streams  govern  the  calculations 
wherefrom  are  ascertained  the  true  areas  of  the  tracts  binding 
on  such  streams.  In  the  sale  of  such  fractional  tracts  or  lots, 
which  always  conform,  as  near  as  may  be,  to  the  size  and 
shape  of  the  regular  subdivisions,  the  specific  lot  is  sold  by 
the  acreage  as  returned  by  the  government  surveyoi's,  and 
reference  is  always  made  to  the  field  notes  and  plats  for  cer- 
tainty of  description,  boundary,  etc.  The  annexed  diagram 
will  serve  to  illustrate  the  subject  more  fully: 

N 


W 


142  ABSTRACTS    OF    TITLE. 

In  compilinp:  the  abstract  it  is  advisable  to  pi-efix  to  the 
same  a  sketch  of  tlie  governiiiciit  survey  as  shown  by  the  offi- 
cial township  ])hits,  and  particnlarly  should  this  be  done  when 
the  subject  of  the  examination  consists  of  a  fractional  section 
or  lot.  Such  sketch  will  be  of  f^reat  service  to  counsel  and 
serve  to  illustrate  and  define  the  boundaries  of  such  land  far 
better  than  any  description  can.  Where  land  binds  upon  a 
navigable  meandered  stream  or  lake,  accretions  and  relictions 
will  occur,  materially  changing  the  shore  line,  and  here  the 
sketch  will  prove  very  serviceable  in  fixing  the  original  boun- 
daries, as  w^ell  as  in  determining  present  rights. 

§  4.  Rectangular  Surveying.  The  rectangular  S^'Stem  of 
surveying  above  stated  has  now  been  in  operation  in  the 
United  States  for  nearly  one  hundred  years.  Its  advantages 
over  other  methods  consist  in  its  economy,  simplicity  in  tl:e 
process  of  transfer,  and  brevity  of  description  in  deeding  the 
premises  by  patents,  and  in  the  convenience  of  reference  of 
the  most  minute  legal  subdivision  to  the  corners  and  lines  of 
sections,'  the  convenient  mode  of  subdividing  sections  with 
a  view  to  economy  and  to  facilitate  sales  of  small  tracts  being 
an  essentially  marked  feature.  The  principal  base,  principal 
meridian,  standard  parallels  and  guide  meridians  constitute 
the  framework  of  the  rectangular  system  of  public  surveys, 
and  there  are  at  present  permanently  established  twenty  prin- 
cipal bases  and  twenty-three  principal  meridians,  controlling 
the  public  surveys  in  the  land  States  and  territories. 

Ordinarily  the  public  surveys  are  governed  by  one  principal 
base  and  principal  meridian,  but  in  a  few  districts  and  on  the 
Pacific  slope,  a  number  of  different  initial  points  are  necessi- 
tated by  abrupt  mountains  throughout  the  district.  The 
lines  of  public  surveys  over  level  grounds  are  measured  wutli 
a  four-pole  chain  of  sixty-six  feet  in  length;  eighty  chains 
constituting  a  mile,  but  where  the  features  of  the  country  are 
broken  and  hilly,  a  two-pole  chain  is  used.  The  lines  and 
corners  thus  run  are  marked  and  perpetuated  by  blazing  trees, 
stones,  mounds  or  other  monuments,  the  witness  monuments, 

'  Zabriskie's  Land  Laws,  508,  et  seq. 


SURVEYS,    FLATS    AND    SUBDIVISIONS.  143 

bearings  and  distances  being  ascertained  and  described  in  the 
field  notes.  The  boundaries  and  contents  of  .the  several  sec- 
tions and  quarter  sections  are  ascertained  in  conformity  to 
the  following  principles:  "  Tlie  boundary  lines  actually  run, 
and  marked  in  the  surveys  returned,  shall  be  established  as 
the  proper  boundary  lines  of  the  sections  or  subdivisions  for 
which  they  were  intended;  and  the  length  of  such  lines,  as 
returned,  shall  be  held  and  considered  as  the  true  length 
thereof;  and  the  boundary  lines  wliich  shall  not  have  been 
actually  run  and  marked  as  aforesaid,  shall  be  ascertained  by 
running  straight  lines  from  the  established  corners  to  the  op- 
posite corresponding  corners;  but  in  those  portions  of  the 
fractional  townships  where  no  such  opposite  corresponding 
corners  have  been  or  can  be  fixed,  the  said  boundary  line  shall 
be  ascertained  b}'  running  from  the  established  corners  due 
north  and  south  or  east  and  west  lines  (as  the  case  may  be)  to 
the  water-course  or  other  external  boundary  of  such  fractional 
township."  ^ 

§  5,  Meander  Lines.  Meander  lines  are  run,  in  surveying 
fractional  portions  of  the  public  lands  bordering  on  navigable 
rivers,  not  as  boundaries  of  the  tract,  but  for  the  purpose  of 
defining  the  sinuosities  of  the  bank  of  the  stream,  and  as  the 
means  of  ascertaining  the  quantity  of  the  land  in  the  fraction 
subject  to  sale,  and  which  is  to  be  paid  for  by  the  purchaser." 
Fractional  divisions,  made  so  by  the  interference  of  water,  are 
designated  and  sold  by  the  numbers  attached  to  the  lots,  and 
reference  is  always  had  to  the  notes  of  survey.  The  water  in 
these  notes  is  always  the  boundary,  and  where  there  exists  a 
difference  between  the  meandered  line  as  run  and  the  existing 
line  of  the  water-course,  the  latter  and  not  the  former  is  to  be 
considered  the  true  boundary.*  Yet,  though  a  meandered 
line  is  generally  considered  as  following  the  windings  of  a 
stream,  the  question  whether  it  does  so  or  not  may  be  deter- 
mined by  evidence  aliunde,  and  the  mere  fact  that  it  is  run  and 

1  1  Stat,  at  Lar^e,  446;  2  Stat,  at      (U.  S.)272. 

Large,  73;  2  do.  313.  ^  Boonnan  v.  Siinnnclrs,  42  Wis. 

2  R.  R.  Co.  V.  Schurmeir,  7  Wall.      233;   Houck  r.  Yates,  82111. 179. 


144  ABSTKACTS    OF   TITLE. 

designated  upon  the  plats  as  a  meandered  line  is  not  conclusive 
against  the  government,  and,  it  has  been  held,  that  an  entry 
of  government  land,  bounded  by  a  meandered  line,  does  not 
include  land  lying  at  the  time  between  such  meandered  line 
and  the  bank  of  the  river.'  Where  fractional  pieces  of  land 
are  patented,  bounded  in  part  by  a  stream  or  bayou,  tlie  orig- 
inal plat  may  be  resorted  to,  and  the  lines  as  originally  run 
will  control.  This  is  the  rule  adopted  in  determining  con- 
troversies between  contiguous  proprietors  of  fractional  lands, 
the  patentees,  and  those  claiming  under  them  being  restricted 
to  the  boundaries  as  shown  by  the  plats  and  field  notes.  In 
all  cases,  where  land  is  made  fractional  by  a  navigable  water- 
course, the  patentee  purchases  by  the  plat,  and  a  })atent  for  a 
fractional  part  of  a  quarter  section  on  one  side  of  a  water- 
course, where  the  area  sold  is  noted  on  the  plat  of  the  frac- 
tional tract  called  for  by  the  patent,  will  not  extend  his  entry 
and  pnrchase  across  the  stream,  so  as  to  embrace  that  part 
of  the  quarter  on  the  other  side.'^ 

§  6.  Plats  and  Subdivisions.  Agricultural  lands  seldom 
receive  any  other  subdividing  than  that  afforded  by  the  gov- 
ernment survey,  but  in  cities,  towns  and  villages,  the  necessi- 
ties of  society  require  a  most  minute  subdivision  into  what 
are  popularly  termed  blocks  and  lots.  Original  subdivisions 
again. become  the  subject  of  re-subdivisions, ^and  these  in  turn 
are  not  infrequently  divided  to  meet  the  exigencies  of  social  o:* 
business  relations.  The  formal  act  of  resurveying  is  technic- 
ally termed  a  subdivision;  the  result  of  the  survey  wdien  pro- 
jected upon  paper,  a  plat.  These  subdivisions  and  plats  play 
an  important  part,  both  in  conveyancing  and  in  the  examina- 
tion of  titles,  and  upon  them  no  small  portion  of  the  validity 
of  land  titles  rests.  In  every  communit}^  of  an}^  appreciable 
size,  lands  are  convej'ed  and  described  with  special  reference 
to  these  plats  and  subdivisions,  the  government  survey  being 
referred  to  only  incidentally  and  for  the  purpose  of  greater 
certainty  in  locating  the  particular  tract  which  forms  the  sub- 
ject of  the  plat.     They  form  equally  as  important  features  in 

'  Lammers  v.  Nissen,  4  Neb.  245.       and  authorities  last  cited. 
But  see  Wright  v.  Day,  33  Wis  260;         ^  McCormick  v.  Huse,  78  111.  363. 


SUKVEYS,    PLATS    A.ND    SUBDIVISIONS.  145 

preparing  an  abstract  as  the  title  deeds  there  sliown,  and  re- 
quire the  same  degree  of  care  from  the  examiner  in  their  ex- 
position. Where  a  conveyance  gives  no  other  description  of 
the  hind  than  the  lot  or  block  of  a  survey  or  subdivision,  the 
authentic  plat  of  such  survey  is  as  much  a  part  of  the  deed 
as  if  set  out  in  it,'  and  a  reference  to  a  plat  is  as  effective  by 
way  of  estoppel  as  expi-ess  woi*ds  of  grant  or  covenant.'"'  A 
reference  to  a  plat  by  lot  and  block  has  usually  a  more  controll- 
ing influence  than  a  special  description,  and  when  a  designa- 
tion by  lot  is  followed  by  a  description  by  metes  and  bounds 
embracing  an  area  less  than  the  lot,  it  has  been  held  to  import 
an  intent  of  the  grantor  to  convey  the  whole  lot,  the  law  pre- 
suming the  addition  to  be  merely  an  intent  to  give  a  more 
particular  descri})tion.'* 

§  7.  Formal  Requisites.  The  formalities  attending  the 
platting  and  subdividing  of  land  are  the  subject  of  express 
statutorj^  provisions  in  all  the  States,  and  unlike  deeds,  there 
are  no  common  or  uniform  methods,  each  State  providing  its 
own  system  of  platting  and  authentication.  Ordinarily  the 
plat  must  show  the  shape  and  exterior  boundaries  of  the  land 
it  is  intended  to  represent,  and  of  each  subdivision  thereof; 
the  length  and  courses  of  all  boundary  lines;  the  monuments 
erected  in  the  field;  and  the  nama  of  the  tract  so  divided,  as 
well  as  the  streets,  etc.,  shown  thereon,  together  with  the  width 
of  such  streets,  alleys,  etc.  Appended  to  the  plat  there  must 
usually  be  a  description  of  the  land  surveyed,  ofiicially  certi- 
fied by  the  surveyor  and  a  certificate  of  acknowledgment 
by  the  owner  or  owners  of  the  land.  In  addition,  municipal 
regulations  sometimes  req^uire  an  approval  by  the  civic  au- 
thorities. The  foregoing,  or  similar  requirements,  are  usually 
made  indispensable  requisites  to  registration,  and  their  faith- 
ful observance  is  necessary  to  give  validity  to  the  subdivision. 
Plats  are  usually  recorded  in  the  registry''  of  deeds  in  special 
books,  though  this  is  not  a  uniform  practice,  and  where  no 
specific  regulation  exists  they  will  also  be  found  in  other  places. 

iDoltle  V.  Vodicka,  49  Mo.   100;       Cox  v.  James,  45  N.  Y.  557. 
Powers  0.  Jackson,  50  Cal.  429.  « Rutherford  v.  Tracy,  48  Mo.  325. 

2 Baxter  r.  Arnold,  114  Mass.  577; 

10 


146  ABSTRACTS    OF    TITLE. 

Thus,  arbitrary  divisions  made  by  the  assessor  for  the  purposes 
of  taxation  will  frequently  be  found  in  the  office  of  the  auditor 
or  clerk  of  the  county;  plats  made  by  the  order  of  a  court  of 
chancery,  in  partition,  and  other  cases,  will  be  found  among 
the  records  and  archives  of  the  court,  though  these  observations 
rather  apply  to  what  lias  been  than  to  present  practices,  and 
all  plats,  particularly  in  the  newer  States  are,  as  a  rule,  re- 
quired to  be  filed  with  the  recorder  of  deeds.  The  following 
will  serve  as  a  precedent  for  abstracting  a  plat  and  subdivision, 
the  minor  details  of  which  must  be  varied  to  suit  the  de- 
mands of  local  legislation. 

Subdivision  |      Plat,   entitled  \_here   set   out   the 

hy  >  title  as  found  on  the  plat,  and  pro- 

William  Smith.        )  ceed  as  hereafter  shown.'\ 

Or,  if  desired,  commence  it  thus: 


"  Smith''s   Subdivision " 

of 

The  northeast   quarter 


Plat   entitled  as  in  the  margin. 
Recorded  June  2,  18S1. 
Booh  2  of  Plats,  page  ^5. 


of  the  7iorthivest  guar-  \-     Surveyor'^s   certijicate,    by  Jason 


ter  of  Section  10,  Town 
13  North,  Range  'Bl, 
east  of  the  3d  P.  J/." 


Lothrop,  dated  June  1,  18S1,  certi- 
fies thiat  he  has  surveyed  the  north- 
east quarter,  etc.,  {set  out  descrip- 
tion by  surveyor]  into  lots  and 
blochs,  as  shown  upon  the  annexed  map,  and  that  said  map 
is  a  correct  representation  of  all  the  exterior  boundaries  of 
the  land  surveyed,  and  of  the  divisions  thereon  rnade,  and 
further  certifies  that  said  survey  and  map,  loas  made  by  the 
order  and  direction  of  William  Smith,  and  that  he  has  fully 
complied  with  all  the  provisions  of  lav)  in  surveying,  subdi- 
viding and  mapping  same. 

[Should  notes  of  survey  be  filed  in  addition  to  the  map, 
they  may  be  shown  or  not  in  the  discretion  of  the  examiner, 
or  as  his  client  may  direct.'] 

Acknowledged  by  William  Smith,  as  owner,  June  '2,  1881. 
Said  map  is  as  follows  {or,  by  direction,  we  omit  the  map.) 

Usually,  if  the  map  is  small,  it  is  customary  to  insert  it. 
If  very  large,  then  only  such  portion  as  may  be  necessary  to 


SURVEYS,    PLATS   AND    SUBDIVISIONS.  147 

show  the  relative  location,  shape,  bomidaries  and  dis Lances  of 
the  particular  lot  or  lots  under  examination.  In  this  event, 
the  concluding  paragraph  shouhi  read:  "So  much  of  said 
map  as  relates  to  the  property  in  question  is  as  follows."  It 
is  recommended  that  whenever  practicable,  the  y)lat  or  some 
portion  of  it  be  shown.  It  is  usuallv  of  considerable  assist- 
ance to  counsel,  and  if  the  examination  involves  niceties  in 
measurements,  or  conflicting  claims  of  contiguous  proprietors, 
is  indispensable.  If  the  law  requires  attesting  witnesses,  note 
any  defect  of  this  nature,  as  also  any  imperfect  or  defective 
execution.  Plats  and  subdivisions  made  by  executors,  ad- 
ministrators and  guardians,  as  well  as  partitions  between 
heirs  and  tenants  in  common  are  frequently  made  under  the 
direction  and  sanction  of  a  court  of  equity,  and  in  this  event 
a  general  synopsis  of  the  proceedings  in  court,  as  well  as  the 
acts  of  the  owners  or  parties  interested,  should  be  shown. 

§  8.  Effect  of  Registration.  When  duly  executed,  ac- 
knowledged and  recorded,  as  provided  by  law,  a  certified  copy 
of  such  plat  and  subdivision  may  be  used  in  evidence  to  the 
same  extent  and  with  like  effect  as  in  case  of  deeds,  and  by 
statute  such  registration  and  acknowledgment  is  usually  made 
to  operate  as  a  conveyance  in  fee  simple  of  such  portions  of 
the  ])remises  platted  as  are  marked  or  noted  on  such  plat  as 
donated  or  granted  to  the  public,  or  any  society,  corj)oration 
or  body  politic,  and  as  a  general  warranty  against  the  donor, 
his  heirs  and  representatives,  to  such  donee  or  grantee  for 
their  use,  or  for  the  use  and  purposeo  therein  named  or  in- 
tended, but  for  no  other  use.  And  the  premises  intended  for 
any  street,  alley,  way  or  common,  or  other  public  use,  are 
held  in  the  corporate  name  of  the  municipality  in  trust  to 
and  for  the  uses  and  purposes  set  forth  or  intended.'  Selling 
by  a  plat  which  has  not  been  recorded  is  also  a  misdemeanor 
in  a  majorit}'  of  the  States. 

§  9.      Vacation  and  Cancellation.      The    entire  doctrine  of 
plats  and  subdivisions  being  regulated  by  statutq,  no  uniform 

»See  R.   S.  111.  1845,  p.  115;  do.      645.      See    infra    "Dedication    by 
1874,    p.   771;  R.  S.  Wis.  1878,  p.      Plat,"  page  149. 


14S  ABSTRACTS    OF   TITLE. 

rules  can  be  ^\ven  as  to  the  metliod  of  vacation  or  cancella- 
tion, and  recourse  must  be  had  to  local  law,  as  in  the  case  of 
platting  and  recording.  Ordinarily  a  plat  may  be  vacated  by 
the  owner  of  the  premises,  at  anytime  before  he  has  disposed 
of  any  of  the  property,  by  a  written  instrument  declaring  such 
intention,  executed,  acknowledged  or  ]»roved,  and  recorded  in 
like  manner  as  deeds  of  land.  Such  a  declaration,  duly  re- 
corded, usually  operates  to  destroy  the  force  and  effect  of 
the  recording  of  the  plat  so  vacated,  and  divests  all  public 
rights  in  the  streets,  alleys,  public  grounds,  etc.,  laid  out  or 
described  in  such  plat.'  The  record  of  the  plat  so  vacated 
should  also  refer  to  the  vacation.  This  is  the  most  sim))le 
manner.  In  some  States,  however,  more  formality  is  re- 
quired frequently  rendering  necessary  the  intervention  of  a 
court,  as  well  to  authorize  the  initiation  of  proceedings  as  to 
approve  of  such  as  may  be  taken.^  Where  an  application  is 
required  to  be  made  to  ac)urt,  notice  is  also  required  to  all 
whom  it  may  concern.  In  the  former  case  of  vacation  a  syn- 
opsis of  the  instrument  filed  is  all  that  is  necessary  in  the  ab- 
stract; in  the  latter,  a  resume  of  the  steps  taken  as  well  as  the 
judgment  or  order  of  the  court  is  necessary.  The  effect  is 
practically  thesan)e  in  either  case  both  as  to  the  owners  and 
the  public.  AVhen  made  by  a  declaratory  statement,  the  ab- 
stract would  be  stibstantially  as  follows: 


Yacation^ 

The  Plat  of  Riverdale, 
heing  Fred.   Schmidfs 


Declaration  of  vacation. 

Dated  Jan.  31,  1883. 

Recorded  Jan.  31, 1883. 

Book  852,  page  210. 
subdivision  of  part  oj"  \-  Recites,  tliat  FredericTc  Schmidt, 
the  south  2,300  chains  j  loho  is  the  sole  oioner  of  all  the 
of  the  southeast  quainter  \  lands  and  lots  covered  hy  hlochs  5, 
of  section  33,  town  37  \  6.  7,  8,  9,  10  {etc.\  of  Frederick 
north,  range  llj.,  east,      j   Schmidt's  subdivision  of  part  of 

the  south  2,300  chains  of  the  south- 
east quarter  of  section  33,  town  37  north,  range  Up  east,  in  the 

1  R.  S.  111.  1874,  Chap.  109,  §  6.  iner  may  say  "Vacation  by  Frederick 

2R.     S.   Wis.    1878,    Chap.    101,  Schmidt, "  and  set  out  the  title  as  in 

§  2265.  case  of  deeds  in  the  right-hand  mar- 

3  Instead  of  this  caption  the  exam-  gin. 


SUKVEYS,    FLATS    AND    SCBDIVISIOXS.  149 

County  of  Cook,  and  State  of  Illinois,  recorded  June  21, 
187 Jf.,  in  hook  7  of  2)lats,page  83,  under  the  provisions  of  the 
statute  sets  aside  the  subdivisions  referred  tp  and  vacates  tlie 
same  for  the  purpose  ofrestorimj  the  property  to  its  original 
condition,  meaning  and  intending  to  declare  vacated^  and 
does  declare  vacated,  the  whole  of  said  plat. 
Acknowledged  Jan.  31, 1883. 

Whenever  practicable,  the  vacation  should  immediately 
follow  the  plat.  This  can  always  be  done  where  no  convey- 
ances have  been  made.  Where  portions  of  the  property  have 
been  sold  and  the  owners  join  in  the  execution  of  the  vaca- 
tion, the  deeds  to  them  will  intervene  in  chronoloijical  order. 

§  10,  Dedication  by  Plat.  Where  a  dedication  to  public 
use  is  sou<>;ht  to  be  establislied  from  tiie  acquiescence  of  the 
owner  in  the  use  of  the  property  by  the  public,  or  from  acts 
or  declarations  of  an  equivocal  character  which  are  consistent 
with  a  dedication  to  public  use,  or  to  the  mere  permissive  use 
by  the  public  for  a  temporary  though  indefinite  period  of 
time,  the  intention  of  the  owner  in  permitting  such  use  is  un- 
questionabl}^  of  controlling  influence  and  importance  in  de- 
termining whether  proj^erty  has  been  dedicated  b\^  the  owner 
to  public  use  or  not.^  Bat  where  the  dedication  is  clearly  man- 
ifested by  unequivocal  acts  or  declarations,  upon  which  the 
public  or  those  interested  in  such  dedications  have  acted,  the 
fact  that  the  owner  may  have  entertained  a  difi:erent  inten- 
tion from  that  manifested  by  his  acts  or  declarations  is  of  no 
consequence,' and  if  the  owner  of  land  subdivides  and  plats 
same,  or  lays  out  and  establishes  a  town  or  any  addition  there- 
to, and  makes  and  exhibits  a  map  or  plan  of  such  town  or  ad- 
dition, with  streets,  alleys,  public  squares,  etc.,  and  sells  the 
lots  with  reference  to  such  map  or  plan,  the  purchasers  ac- 
quire, as  appurtenant  to  their  lots,  all  such  rights,  privileges, 
easements  and  servitudes  represented  by  such  map  or  plan  to 
belong  to  them,  or  to  their  owners,  and  the  sale  and  convey- 

1  Dillon  Mun.  Corp.  §  498;  Irwin  Chicago,  38  III.  322. 

r.  Dixon,  9  How.  30;  Manderschid  ^  Lamar   County  v.  Clements,  49 

r.  Dubuque,  29  Iowa,  73;  Godfrey  v.  Tex.  347. 
City  of  Alton,   12  III.   29;  Rees  v. 


150  ABSTRACTS   OF    TITLE. 

ance  of  lots  aeeordinj]^  to  sucli  map  implies  a  ii^rant  or  cove- 
nant, tor  the  benefit  ot"  the  owners  of  the  lots,  that  the  streets 
and  other  pnblic  places  represented  by  the  map  shall  never 
be  appropriated  by  the  owner  to  a  use  inconsistent  with  that 
represented  by  the  map  on  the  faith  of  which  the  lots  are 
sold.^  If  the  owner  of  land  indicates  by  the  map,  or  other 
unequivocal  acts  or  declarations,  that  a  particular  lot  or  square 
is  to  be  reserved  or  applied  to  a  particular  or  specific  use,  of 
a  qiiasl  public  character,  and  such  as  to  induce  purchasers  of 
contiguous  or  neighboring  lots  to  give  a  higher  price  than 
they  otherwise  would,  the  use  to  which  such  lot  was  to  be 
appropriated  would  no  d(.)ubt  be  a  reservation,  and  not,  strictly 
speaking,  a  dedication  to  public  use.  But,  nevertheless,  the 
difference,  so  far  as  the  owners  of  lots  purchased  on  the  faith 
of  such  reservation  are  concerned,  is  merely  nominal,  for  the 
owner  of  the  property  who  thus  sells  it  is  estopped  from  ap- 
propriating the  land  so  reserved  to  a  purpose  inconsistent  with 
that  for  which  it  was  reserved,  or  he  will  be  held  by  such 
sale  to  have  created  a  servitude  in  the  property  reserved  in 
favor  of  the  dominant  estate,  which  he  has  conveyed,  which 
will  prevent  his  applying  the  reserved  property  to  any  other 
purpose  than  that  for  which  it  was  reserved.'^  Ordinarily  the 
fee  does  not  follow  a  dedication  but  remains  in  the  original 
proprietor  burdened  with  the  public  use,  but  in  a  statutory 
dedication  by  making  and  recording  a  plat  the  fee  passes  as 
an  incident  and  is  held  by  the  municipality  for  the  use  and 
benefit  of  the  public.^  An  important  distinction  will  there- 
fore be  made  between  a  common  law  and  a  statutory  dedica- 
tion. As  a  necessary  sequence,  where  the  title  of  one  who 
makes  a  dedication  fails,  the  dedication  also  fails;  but  if  the 
owner  of  the  title  recognizes  the  dedication,  as  where  there 
lias  been  a  plat  made  bj^  the  one  whose  title  has  failed  and 
the  true  owner  deeds  lands  according  to  the  plat,  he  will  be 
estopped  from  denying  the  dedication.* 

^  Lamar   County  v.  Clements.   49  Com.  v.  Rush,  14  Penn.  St.  186. 

Tex.  347;  Huber  v.  Gazley,  18  Ohio,  ^  jvianly  v.  Gibson,  13  111.  308;  R. 

18;  Logansportr.  Dunn,  8  Ind.  378;  R.  Co.  v.  Joliet,  79  III.  25. 

Benty  t\  Kurtz,  2  Pet.  566.  *  Gridley  v.  Hopkins,  84  111.   528. 

2  Harrison  v.  Boring,  44  Tex.  255; 


CHAPTER  XIIL 


FORMAL  PARTS  OF  DEEDS. 


§  1- 

Operative  parts  of  a  deed. 

§15. 

Special  recitals. 

2. 

Names  of  the  parties. 

16. 

The  habendum. 

8. 

Grantors. 

17. 

Exceptions  and  reservations. 

4. 

Grantees. 

18. 

Conditions  and  limitations. 

5. 

Nature  of  the  instrument. 

19. 

Covenants. 

6. 

Date  of  instrument. 

20. 

Execution. 

7. 

Registration. 

21. 

The  signature. 

8. 

Consideration. 

22. 

The  seal. 

9. 

Effect  of  consideration. 

23. 

Attestation. 

10. 

Words  of  grant. 

24. 

Authentication — Acknowledg- 

11. 

Words  of  inheritance  and  lim- 

ment. 

itation. 

25. 

Delivery. 

12. 

Description  of  property. 

26. 

Ancient  deeds. 

13. 

Description — Sufficiency. 

27. 

Stamps. 

14. 

Description — Construction. 

§  1.  Operative  parts  of  a  Deed.  The  essential  features  of  a 
deed  of  convejance,  which  require  notice  on  the  part  of  the 
examiner,  are  as  follows: 

Tiie  named  of  tlie  parties,  grantor  and  grantee  respective! }'■, 
with  full  descrij)tlo  personce,  including  the  character  in  which 
they  act. 

The  nature  of  the  instrument. 

The  dates,  respectively,  of  execution  and  registration,  to- 
gether with  the  volume  and  page  of  tlie  registry. 

The  consideration. 

Operative  words  of  grant,  inheritance  and  limitation. 

The  description  of  the  property  or  matter  conveyed. 

The  habendum. 

Reservations  and  exceptions. 

Covenants  and  conditions. 

Special  recitals. 

(151) 


152  ABSTRACTS    OF    TITLE. 

Execution  and  attestation, 

Tlie  acknowledgment  and  certificate  of  conformity. 

The  majority  of  the  foregoing  parts  must  appear  in  every 
abstract,  while  a  few  need  only  be  shown  when  they  become 
material:  the  question  of  materiality  to  be  decided  by  the  ex- 
aminer from  the  circumstances  developed  in  each  particular 
case.  A  brief  review  of  the  foregoing  heads  will  be  made  in 
the  succeeding  paragraphs  and  the  subjects  will  also  receive 
fui'ther  consideration  in  treating  of  sjiecific  conveyances. 

§  2.  Names  of  the  Parties.  As  there  can  be  no  valid 
deed  without  grantors  to  give  ^  and  grantees  capable  of  taking,'"' 
the  parties  to  the  conveyance  form  the  Urst  natural  inquiry. 
In  the  abstract  they  should  be  shown  with  the  same  certainty 
of  identity  as  in  the  original  instruments,  together  with  any 
imperfect  designation,  error  or  omission,  appearing  on  the 
face  of  the  deed  or  deduced  inferentially  from  comparison 
with  other  instruments  in  the  chain.  Errors  or  omissions, 
however  slight  or  trivial,  should  always  be  noted  in  such  a  man- 
ner as  to  bring  them  to  the  attention  of  the  person  who  may 
peruse  the  abstract,  and  when  necessary  may  be  supplemented 
by  the  examiner's  private  note,  or  references  to  other  instru- 
ments shown  in  the  same  examination.  The  names  of  the 
parties  should  form  the  caption  to  the  synopsis,  and  are  usu- 
ally written  in  legal  style,  on  ihe  left  hand  margin  of  the 
sheet  and  united  b}'  a  bracket. 

§  3.  Grantors.  The  names  of  the  grantors  appear  several 
times  in  the  deed,  and  are  usually  inserted  among  the  first  re- 
citals in  the  premises,  accompanied  with  a  description  of  ihe 
person  and  other  particulars  as  to  residence,  mai'riage,  capacity, 
etc.  They  again  appear  in  the  covenant  clause  and  finally  in 
the  execution.  In  abstracting  the  deed  the  names  wherever 
written  should  be  carefully  compared  with  each  other  and  vari- 
ances in  the  irrantino:  or  covenantino-  clauses  and  in  theexecu- 
tion  and  acknowledgment  properly  noted.  The  domestic  re- 
lations of  either  or  any  of  the  gi-antors,  if  stated,  should  be 

1  Whitaker  v.  Miller,  83  111.  381.        (Ky.)  545 ;  Douthitt  v.  Stiuson,  63 

2  Garnettr.  Garnett,  7T.  B.  Mon.       Mo.  268. 


rOKMAL  PARTS  OF  DEEDS.  153 

given  with  tlie  same  parlioularity  as  the  oriiiiiuiL  At  com- 
mon law  tlie  deed  of  a  married  woman  is  absolutely  void/  but 
by  liberal  and  progressive  legislative  enactments,  this  rigor- 
ous and  seemingly  unjust  rule  has  been  practically  abrogated. 
The  examiner  will  therefore  note  the  changes  of  the  law  in 
this  res]:)ect,  as  applied  in  his  own  State,  and  carefully  observe 
that  all  the  requirements  of  the  statute,  at  the  date  of  the 
deed,  have  been  substantially  complied  with,  as  a  married 
woman  can  only  be  divested  of  her  property  or  interest  in  land 
in  the  mode  and  manner  which  the  Legislature  has  prescribed." 
Though  it  is  the  universal  practice  of  conveyancers  to  insert 
after  the  names,  the  residence  and  not  infrequently  the  occu- 
pation of  the  parties,  there  appears  no  good  reason  why  same 
should  be  transferred  to  tlie  abstract.  The  question  of  alien- 
age is  set  at  rest  in  all  the  States  by  special  legislation,  while 
the  chain  of  conveyances  is  usually  sufficient  to  prove  iden- 
tity without  referring  to  residence  or  occupation.  Some  exam- 
iners give  the  residence  of  parties  only  when  they  reside 
without  the  State,  as  an  aid  in  determining: their  identity  in  the 
search  for  judgments,  or  to  enable  counsel  to  further  prosecute 
inquiries  raised  by  the  abstract  and  not  answered  therein.  The 
matter  is  optional  with  the  examiner  and  may  be  omitted  or 
not  in  his  discretion.  Special  descriptions,  particularly  when 
explanatory  of  the  capacity  in  which  the  parties  act,  should 
nsually  be  given  verbatim,  and  always,  when  they  indicate  a 
rej^resentative  or  official  character. 

§  4.  Grantees.  Most  of  the  foregoing  remarks  on  grantors 
apply  with  equal  force  to  grantees,  and  the  same  particularity 
should  be  used  in  reciting  and  describing  them.  The  names 
of  the  grantees  are  found  in  the  operative  part  of  the  prem- 
ises, and  occasionally  are  repeated  in  the  habendum,  though 
the  references  which  follow  are  usually  to  "  said  second  par- 
ties." Imperfect  designation,  errors  and  omissions  should  be 
treated,  so  far  as  may  be,  in  the  same  general  manner  as  in 
case  of  grantors,  though    these   circumstances  are  not  so  ap- 

'  Fowler  v.  Shearer,  7  INIass.  14;  Garret  v.  Moss,  22  111.  363  ;  Heaton 
Lane  r.  Soulard,  15  111.  124.  v.  Fryberger,  38  Iowa,  185. 

2  Mason  V.   Brock,    12    111.   273; 


15-1:  ABSTRACTS    OF   TITLE. 

parent  wlien  applied  to  grantees,  and  usually  must  be  deduced 
inferentially  or  by  comparison.  It  is  essential  to  tlie  validity 
of  a  conveyance  that  it  be  to  a  grantee  capable  of  taking  and 
of  proj)er  identification;  hence,  a  deed  to  a  corporation  which 
has  no  legal  existence,  would  be  a  nullity,  and  pass  no  title  to 
anyone;'  or  to  the  heirs  of  a  living  person  named  therein 
without  giving  the  names  of  the  heirs. ^  So,  too,  a  conveyance 
to  Jno.  Smith  &  Co.  would  have  the  effect  to  vest  the  title  in 
Jno.  Smith  alone,^  a  firm  name  not  being  a  sufficient  naming 
of  the  grantee;  yet  it  seems  that  'this  may  be  regarded  as  a 
latent  ambiguity  which  may  be  explained  by  parol.*  An 
absolute  conveyance  from  husband  to  wife,  while  void  at  law, 
has  been  held  good  in  ecpiity,  and  will  vest  the  title  in  the 
wife  as  against  the  heirs  of  the  husband.*  A  deed  to  a  party 
by  a  wrong  baptismal  or  Christian  name  will  yet  vest  title  in 
the  intended  grantee,^  extrinsic  evidence  being  admissible  to 
explain  mistakes  or  prove  identity',  and  if  upon  a  view  of  the 
whole  instrument  the  grantee  is  pointed  out,  the  grant  will 
not  fail,  even  though  the  name  of  baptism  be  not  given  at  all.^ 
No  person  can  take  a  present  estate  under  a  deed  unless 
named  in  same  as  a  party,  and  the  habendum  can  never  intro- 
duce one  who  is  a  stranger  to  the  premises  to  take  as  grantee^ 
(though  he  may  take  by  way  of  reniaiiider),  but  where  the 
grantee's  name  has  been  omitted  in  the  premises,  if  the  haben- 
dum be  to  him  by  name,  his  heirs,  etc.,  he  takes  as  a  party, 
and  the  defect  is  cured.^     Far  less  strictness  is  required  as  to 

»  Douthitt  V.  Stinson,  63  Mo.  268;  Winter  v.  Stock,  29Cal.  407;  Gossett 

Hornbeck  v.  Westbrook,    9   Johns.  v.    Kent,    19  Ark.   607;    Baruett  v. 

73.  Lachman,  12Nev.  361. 

2 Hall    V.    Leonard,    1    Pick.  27;  *Murry    v.  Blackledge,  71    N.  C. 

Winslow    V.    Winslow,   52  Ind.   8.  492. 

In  a  similar  case  in  Tennessee,  how-  ^Putnnm  v.  Bicknell,  18  Wis.  333; 

ever,    it    was    held    that  the  word  Dale  v.  Lincoln,  62  111.  22;  Sherman 

'"heirs  "  should  not  be  taken  in  its  v.  Hogland,  54  Ind.  578. 

technical  signification,  but  to  mean  ^Staak  v.  Sigelkow,  12  Wis.  234. 

"  children,"  and  that  the  deed  took  ^  Newton  v.  McKay,  29  Mich.  1. 

effect  as  a  present  grant.    See  Grimes  *  Blair  v.   Osborne,  84  N.  C.  417; 

V.  Orrand,  2  Hei.sk  (Tenn.),  293.  Hornljeck  v.  Westbrook,  9  .lohns.  73. 

3 Ajthur  V.  Webster,  22  Mo.  378;  » Lawe  t\  Hyde,  39  Wis.  346. 


FORMAL  PARTS  OF  DEEDS.  155 

capacity,  etc.,  in  grantees  than  in  case  of  grantors,  and  few  of 
the  disahilities  which  encompass  the  latter  are  applicable  to 
the  former.  Coverture,  infancy,  Innacj,  etc,  form  no  bar  to 
the  grant,  but  as  a  rule,  to  be  valid,  it  must  be  to  a  corpora- 
tion, or  to  some  certain  person  named,  who  can  take  by  force 
of  the  grant,  and  hold  in  his  own  right,  or  as  trustee.' 

§  5.  Nature  of  the  Instrument.  After  the  recital  of  the 
parties,  the  next  inquiry  of  importance  is  the  nature  or  char- 
acter of  the  conveyance,  which  can  be  ascertained  only  from  a 
general  survey  of  the  entire  instrument.  The  name  should 
be  written  on  the  right  hand  margin  of  the  sheet  in  the  man- 
ner hereafter  shown,  and  should  be  sufficiently  full  to  indicate 
its  true  purport.  The  name  of  the  particular  kind  of  convey- 
ance has,  of  course,  no  legal  efficacy  or  value,  but  serves  as  a 
fitting  introduction  to  the  synopsis,  and  apprises  the  reader  at 
the  outset  of  its  import  and  character. 

§  6.  Date  of  Instrument.  The  date  of  the  execution  of  the 
deed  should  follow  next  in  order,  and  may  consist  simply  of  a 
line  embodying  the  fact,  as  "Dated  July  10,  1882,"  or  if 
without  date,  a  statement  to  that  effijct.  The  date  is  no  part 
of  the  substance  of  a  deed,'*  nor  is  it  essential  to  its  validity,^ 
the  conveyance  taking  etfect  only  from  delivery,*  but  may 
become  important  in  determining  questions  of  prioritj-,^  or  in 
ascertaining  whether  all  the  statutory  requirements  at  the 
time  of  its  execution  have  been  complied  with.  The  date  of 
a  deed,  in  the  absence  of  other  proof,  is  presumed  to  be  the 
true  date  of  its  execution,"  as  well  as  delivery,'  and  is  the  time 
from  which  title  in  the  grantee  should  ordinarily  be  com- 
puted.*  As  deeds  are  now  drawn,  the  date  usually  forms  the 
initial  recital  in  the  premises,  though   it  may  frequently  be 

J  Jackson  v.  Gary,   8   Johns.  385;  37  Mich.  264;  Whitaker  r.  Miller,  83 

Kewton  v.  McKay,  29  Mich.  1.  111.  381. 

^  Jackson  v.  Schoonmaker,  2  Johns.  ^  ggg  ^j(.]g  <i  Delivery." 

230;  Meach   v.  Fowler,  14  Ark.  29;  ^  ^.^j-st  v.  Bates,  51  111.  439;  Smith 

Costigan  v.  Gould,  5  Denio,  290.  v.  Porter,  10  Gray,  66. 

3  Jackson  v.    Bard,  4  Johns.  230;  'Hardin  r.  Crate,  78  III.  553. 

Blake  t\  Fish,  44  111.  302;  Thompson  »  Breckenridge  v.  Todd,   16  Am. 

r.  Thompson,  9  Ind.  323.  Dec.  83. 

*  Thatcher  v.  St.  Andrew's  Church, 


156  ABSTRACTS    OF   TITLE. 

found  ill  tlie  testimoiiium  clause,  and  in  case  of  discrepancy 
the  latter  should,  it  seems,  be  taken  as  the  truedate.^  Though 
the  expressed  date  of  a  deed  is  immaterial  to  its  operation  and 
effect,'*  and  may  under  ordinary  circumstances  be  contradicted 
or  explained,^  yet  when  taken  in  connection  with  conditions 
or  stipulations  annexed  to  the  grant,  it  may  become  important 
in  fixing  the  time  for  the  performance  of  any  act  by  grantor 
or  grantee,  and  in  such  case  can  not  be  varied  by  parol.* 
Should  the  instrument  be  without  date,  the  date  of  acknowl- 
edirmcnt  may  be  presumed  to  be  also  that  of  execution  and 
delivery.* 

§  7.  Registration.  For  convenience,  the  particulars  of 
registration  should  follow  the  date,  though  many  examiners 
pi-efer  to  insert  them  at  the  conclusion  of  the  synopsis  as  a 
proper  logical  sequence.  In  the  examination  of  titles,  how- 
ever, these  ficts  are  best  read  together,  and,  to  facilitate  the 
labors  of  counsel,  should  be  placed  as  first  indicated.  The 
only  material  facts  concerning  registration  are,  the  date  of 
record  and  the  volume  and  page  on  which  the  instrument  is 
recorded,  which  should  be  stated  briefly  and  concisel3\  In 
case  of  re-record,  the  date,  volume  and  page  of  the  former 
record  may  be  given  after  the  s^mopsis  as  a  supplemental  foot- 
note. As  the  general  subject  of  registration  has  already  been 
quite  fully  noticed,  but  little  need  be  said^at  this  place.  The 
date  of  record  is  important  in  passing  on  questions  of  priority, 
particularly  when  the  instrument  is  itself  without  date,  and 
in  those  States  where  by  statute  it  must  be  recorded  within  a 
specified  time  to  secure  preference  over  other  conveyances  or 
against  creditors.  Whenever  practicable,  it  is  recommended 
that  all  information  be  taken  direct  from  the  records,  but 
occasionally  ii  will  happen  that  through  the  tardiness  of  the 
enrolling  officers,  conve\'ances  are  not  actually  transcribed 
until  long  after  they  have  been  filed  for  record.     In  this  event 

'Morrison    v.    Caldwell,    5  T.  B.  » 2  Black.  Com.  n04. 

Mon.  (Ky.)  426.  *  Joseph  v.  Biglow.  4  Gushing',  82. 

2  Harrison  v.  Trustees  of  Phillips'  ^  Gorman  v.  Stanton,  5  Mo.  App. 

Academy,  12  Mass.  4o6.  585. 


FORMAL  PARTS  OF  DEEDS.  157 

the  examiner,  in  order  to  fully  cover  the  period  of  his  search, 
iiinst  have  recourse  to  the  orig-inal  documents,  but  it  is  furtlier 
recommended  that  after  the  sj'nojjsis  of  all  such  documents, 
the  examiner  apf)end  the  following: 

ISToTE. — The  particulars  of  the  foregoing  conveyance  taJcen 
from  the  original  instrument. 

%  8.  Consideration.  The  consideration  named  in  the  con- 
veyance next  follows,  and  when  consisting  of  the  ordinary- 
acknowledgment  of  the  receipt  of  money,  may  be  exj)ressed 
in  a/simple  statement  of  the  amount  mentioned;  as,  "Con- 
sideration $1,000.00."  The  consideration,  under  the  current 
of  modern  decisions,  has  lost  its  former  importance  and  not 
infrequently  fails  to  denote  the  true  motive  of  the  conveyance. 
When  only  a  nominal  sum  is  inserted,  coupled  with  other 
considerations  not  of  a  pecuniary  nature,  as  "  love  and  affec- 
tion," marriage,  performance  of  specific  acts,  etc.;  the  recital 
should  be  given  in  full,  in  the  identical  language  of  the  in- 
strument, and  verified  by  quotation  marks.  When  the  con- 
sideration amounts  to  a  condition  precedent  or  subsequent, 
this  may  become  of  primary  importance,  while  it  should  al- 
ways be  stated  with  sufficient  clearness  to  enable  counsel  to 
determine  whether  same  is  sufficient  to  sustain  the  convey- 
ance. Should  the  instrument  be  without  consideration,  this 
fact  sliould  also  be  noted  in  the  line,  "No  consideration  ex- 
pressed." 

§  9.  Effect  of  Consideration.  No  consideration  was  re- 
quired in  conveyances  under  the  common  law,  tlie  homage 
and  fealty  incident  to  the  same  being  deemed  sufRcient,  but 
became  necessary  under  the  statute  of  uses.  As  a  general 
proposition,  any  valuable  consideration,  acknowledged  or 
proved,  is  sufficient  to  sustain  a  conveyance  of  lands,'  and 
the  acknowledgment  in  the  deed  of  payment  of  same,  is  so 
far  conclusive  of  the  fact  as  to  give  effect  to  the  conveyance.^ 
A  deed  executed  by  the  party  in  wluun  title  is  vested,  and  ex- 

» Jackson  V.  Leek,  19  Wend.  339.  ^  o^.i^i]ti.ee  y.  McClung,  7   W.  Va. 

232. 


158  ABSTKACTS   OF    TITLE. 

pressino^  a  valuable  consideration,  never  needs,  as  against  liiin 
or  those  claiming  nnder  him,  or  as  against  a  stranger,  to  be 
supported  by  showing  what  other  reason,  in  addition  to  tlie 
will  of  the  party,  led  to  its  execution.'  Nor  is  it  essential  to 
the  validity  of  a  conveyance  that  the  consideration  should  be 
expressed,'^  and  a  deed,  if  properl}^  drawn.,  will  pass  the  title, 
whatever  it  may  be,  without  reference  to  the  consideration 
paid.*  Ordinarily,  where  parties  contract  by  deed  a  consid- 
eration Avill  be  implied  from  the  seal,*  which  as  a  rule  imports 
consideration,^  and  it  has  been  held  that  an  instrument  in 
form  a  conveyance  and  duly  signed,  whether  under  s^al  or 
not,  imports  a  consideration,®  while  a  voluntary  conveyance, 
without  any  consideration,  either  good  or  valuable,  is  valid  and 
binding  between  the  parties  and  their  privies.^  As  against  the 
grantor,  and  those  in  privity  with  him,  the  acl<nowled:jment 
in  the  deed  of  payment  is  his  receipt  or  admission,  which  on 
proof  of  the  deed  will  be  considered  as  proved.*  Such  ac- 
knowledgment, however,  is  not  conclusive,"  and  for  the  pur- 
pose of  recovering  the  consideration,  the  grantor  may  still 
show  that  it  was  never,  in  fact,  paid,'"  but  not  to  invalidate  or 
defeat  the  operation  of  the  deed."  As  against  the  creditors  of 
the  grantor  such  recital  is  but  hearsay,  and  no  evidence  of  the 
fact  of  payment,''^  but  no  one  except  a  creditor  can  avail  him- 
self of  the  objection  that  the  deed  was  given  without  consid- 
eration.'' 

§  10.     Words  of  Grant.     The  oj)erative  words  of  grant  are 

1  Rockwell  ?;.  Brown,  54  N.  Y.  210;  Wallaces.   Harris,   32  Mich.    380; 
Merrill  v.  Burbank,  28  Me.  538.  Laberee  v.  Carleton,  58  Me.  211. 

2  Jackson  V.Dillon,  2  Overt  (Tenn.),  ^  Bayliss  v.  Williams,    6    Coldw. 
261;    Wood    v.  Beach,    7  Vt.   522.  (Tenn.)  440. 

^FetrowtJ.  Merriweather,  53  111.  niuebsch  v.   Scheel,  81  111.281; 

278;  Laberee  v.  Carleton,  53  Me.  211.  Parker  v.  Foy,  43  Miss.  260. 

*Ross  V.  Sadgbeer,  21  Wend.  166;  »» Barter  v.  Greenleaf,  65  Me.  405. 

Evans  v.  Edwards,  26  III.  279.  "  Bassetfc  v.    Bassett,  55  Me.  127; 

^  Hunt  i;.  Johnson,  19  N.  Y.  279;  Neweli  v.   Newell,    14    Kan.    206; 

Croft  V.  Bunster,  9  Wis.  503.  Hi  hardson  v.  Clow,  6  111.  A  pp.  91. 

6  Ruth  V.  King,  9  Kan.  17.  This  in  ^^  pedfield  Mfg.   Co.  v.  Dysart,  62 

the    absence  of  statutory    require-  Pa.  St.  62. 

ments  to  the  contrary.  ^^  Hatch  v.  Bates,  54  Me.  13G. 

'  Fouby  V.  Fouby,    3 1  Ind.    433; 


4 


FORMAL  PARTS  OF  DEEDS.  159 

found  In  tlie  premises  and  usually  immediately  follow  the  con- 
sideration recitals,  in  which  order  they  should  also  appear  in 
the  abstract  whenever  it  may  be  desirable  to  set  them  forth 
fully.  It  is  a  familiar  rule  with  conveyancers,  that  to  vest  a 
title  to  land,  the  deed  must  contain  apt  words  of  grant,  re- 
lease or  conveyance,^  and  so  faithfull}''  has  this  been  followed, 
it  is  not  uncommon  to  meet  conveyances  with  as  many  as 
seven  or  even  ten  operative  words  of  grant.  The  effect  of 
these  words  is  a  question  of  construction  to  be  governed  and 
decided  by  the  law  of  the  State  in  which  the  land  is  situate,^ 
and  no  general  rule  can  be  formulated  for  the  guidance  of  the 
practitioner,  the  laws  of  the  different  States  being  widely  di- 
vergent. The  Avords  of  grant  of  most  frequent  occurrence 
are  "grant,  bargain  and  sell,"  and  in  many  of  the  States 
when  not  limited  by  express  words  they  are  construed  as  ex- 
press covenants,^  wiiile  in  other  States  such  a  conveyance  would 
be  a  mere  quitclaim  and  inoperativ^e  to  convey  an  after-ac- 
quired title,*  or  warrant  that  conveyed.^  Where  the  deed  is 
without  covenants,  or  contains  only  special  or  limited  cove- 
nants, the  words  of  grant  should  beset  forth  immediately  pre- 
ceding the  description.  AVhen  the  usual  covenants  of  seizin, 
warranty,  etc.,  appear  in  the  deed  they  are  immaterial,  and 
may  be  omitted.  Technical  words  of  grant  possess  little  of 
their  former  efficacy,  though  it  may  still  be  true  that  to  con- 
stitute a  conveyance  there  must  be  sufficient  words  showing 
an  intention  to  grant  an  estate,**  yet  every  pai't  of  the  instru- 
ment may  be  resorted  to  for  the  purpose  of  ascertaining  its 
true  meaning  and  the  intention  of  the  parties,''  and  generally, 
any  writing  that  sufficiently  identifies  the  parties,  describes 
the  land,  acknowledges  a  sale  of  vendor's  rights  for  a  valuable 
consideration,  and  is  signed,  sealed  and  delivered,  is  a  good 

*  Johnson  v.  Bantock,  38  Til.  Ill;  unrlor  peculiar  statutory  provisions. 
Catlin  V.  Ware.  9  Mass.  218.  *  Butcher  v.   Rogers,  60  Mo.  1:38; 

2  McGoon  V.   Scales.  9    Wall.  23;  Nicholson  v.  Caress,  45  Ind.  479. 
Clark  V.  Graham,  6  Wheat.  577.  *  Taggart  v.  Risley,  4  Oreg.  235. 

3  Brodie  V.  Watkins,  31  Ark.  319;  »  McKinney  v.  Settles,  31  Mo.  541. 
Hawk  V.  McCullough,  21  111.  220.  '' Saunders  i;.  Hanes,  44  N.  Y.  353; 
This  construction    is  usually  made  Collins  v.  Lavalle,  44  Vt.  230. 


160  ABSTKACTS    OF    TITLE. 

deed  of  bargain  and  sale,'  and  if  complete  in  other  respects  is 
a  valid  conveyance  though  all  words  of  grant  are  omitted.^ 

§  11.  Words  of  Inheritance  and  Limitation.  Closely  al- 
lied to  the  foregoing  are  the  words  of  purchase,  inheritance 
and  limitation,  once  of  the  very  essence  of  thedeed,*  but  now, 
by  reason  of  sweeping  statutory  provisions,  comparatively 
without  value  or  legal  effect.  Though  invariably  inserted  by 
the  conveyancer,  words  of  inheritance  are  no  longer  necessary  to 
create  or  convey  a  fee,  and  as  a  rule,  every  grant  of  lands  will 
pass  all  the  estate  or  interest  of  the  grantor,  unless  a  different 
interest  shall  appear  by  express  terms  or  necessary  implica- 
tion,* the  question  of  the  estate  transferred  being  determined 
rather  by  the  end  sought  to  be  attained  by  the  grantor,  than  by 
tlie  language  emj^loyed.^  The  usual  and  ordiiiai-y  words  for  con- 
veying an  estate  in  fee  simple  are  "  heirs,"  or  "  heirs  and  assigns 
forever."  The  rule  In  Shelly's  case,  with  its  refinements  and 
subtilties  does  not  now  prevail  to  any  extent  in  the  United 
States,  and  by  statute  entails  are  limited  to  the  first  degree 
only,  the  first  grantee  taking  a  life  estate,  while  the  remainder 
passes  in  fee  simple  to  the  second  taker.**  The  effect  of  the 
rule  in  Shelly's  case  is  still  manifest  in  every  State,  but  as  a 
wide  difference  of  interpretation  is  displaj^ed  in  the  decided 
cases,  it  is  difficult  to  prescribe  a  rule  that  shall  be  sufficiently 
certain.  Generally,  if  an  estate  of  freehold  be  limited  to  the 
ancestor  for  life,  and  the  inheritance  to  his  heirs,  either  me- 
diately or  immediately,  the  first  taker  takes  the  whole  estate; 
if  it  be  limited  to  the  heirs  of  his  body,  he  takes  a  fee  tail;  if 
to  his  heirs  generally,  a  fee  simple.  The  words  "  heirs  "  or 
"  heirs  of  the  body"  in  such  case,  are  words  of  limitation  and 
not  of  purchase.'  Whenever  the  words  of  inheritance  depart 
from  the  usual   form    fur  granting  a  fee,  and  seek  to  create  a 

1  Chiles  V.  Conley's  Heirs,  2  Dana  Kirk  v.  Bnrkholtz,  3  Tenn.  Ch.  425 
(Ky.),  21.  ^Bntlev  v.  Haestis,  68  111.  594. 

2  Bridge  r.  "Wellington,  1  Mass.  'Butler  v.  Huestis,  68  111.  594. 
219.  Consult    Foster  v.  Shreve,  6   Bush 

3  Jackson  V.  Meyers,  3  Johns.  388.       (Ky),  519:  Bradford  t?.  Howell,    42 
*  Merritt  v.  Disney,  48  Md.  344;       Ala.  422;  Forrest  v.  Jackson,  56  N. 

Beecher  v.  Hicks,  12  Reporter,  125.      H.  357;    Smith  v.  Block,  29  Ohio  St. 
6  Hawkins  v.  Chapman,  36  Md.  83;      488;  King  v.  Ilea,  56  Ind.  1. 


I 


FORMAL  TARTS  OF  DEEDS.  161 

vested  or  contingent  remainder  in  some  person  other  than  the 
grantee  named,  the  only  safe  method  for  the  examiner  is  to 
set  foi'th  the  granting  clause  verbatim,  and  as  a  further  pre- 
caution tlie  habendum  should  also  be  shown.  To  create  an 
estate  tail  or  remainder,  there  must  be  the  use  of  technical 
words  designating  a  class  of  heirs  to  take  in  succession,  or 
language  disclosing  a  clear  intent  to  that  eflect.*  The  word 
"children,"  though  frequently  used,  is  usually  a  word  of  pur- 
chase, requiring  strong  language  to  change  it  into  a  word  of 
limitatitm.  In  the  preparation  of  abstracts  these  questions 
are  too  frequently  lost  siglit  of  by  the  examiner,  who  fails  to 
give  to  them  and  other  seemingly  minor  details,  the  attention 
their  importance  deserves. 

§  12.  Description  of  Property.  After  the  parties  to  the 
conveyance,  the  thing  or  subject-matter  conveyed  is  the  great 
essential,^  but  for  convenience  and  following  the  orderly  parts 
of  the  deed,  it  should  appear  immediately  after  the  words  of 
conveyance.  In  abstracting  the  deed  it  is  customary  to  con- 
dense the  introductory  sentences  of  the  description  which  al- 
lude generally  to  the  county  and  State,  but  from  this  point,  or 
after  the  words  "  to  wit,"  the  entire  description  as  found  in 
the  deed  should  be  set  forth  verbatim.  It  is  the  custom  also, 
of  many  examiners,  to  refer  for  descriptions  to  the  caption  of 
the  abstract,  or  to  other  instruments  in  the  chain,  containing 
the  same  or  substantially  the  same  description;  a  practice  as 
slovenly  as  dangerous  and  one  strongly  to  be  re])rehended. 
Both  in  preparing  the  abstract  and  in  passing  upon  the  title, 
the  description  should  in  every  case  be  compared  with  the 
caption,  and  any  deviation  therefrom,  either  in  form  or  sub- 
stance, carefully  noted. 

§  13.  Description — Sufficiency.  Every  deed  of  convey- 
ance, in  order  to  transfer  title,  must,  either  in  terms  or  by  ref- 
erence or  other  designation,  give  such  description  of  the  sub- 
ject-matter intended  to  be  conveyed  as  will  be  sufficient  to 
identify  the  same  with  reasonable  certainty.^     It  is  not  essen- 

'  Middleton    v.    Smith,    1     Cald.  *  Berry  r.    Derwart,    11    Reporter, 

(Tenn.)  144.  195;  Long  v.  Wagoner,  47  Mo.  178. 

2  Whitaker  p.  Miller,  83  111.  381. 
11 


162  ABSTRACTS    OF   TITLE. 

tial,  however,  tliat  the  deed  should  on  its  face  ascertain  tlic  lim- 
its or  quantity  of  the  estate  p;ranted,  or  the  particular  ])roi)erty 
conveyed;  but  it  will  be  sufficient  if  it  refers  to  certain  known 
objects  or  things,  and  provides  definite  means  by  which  the 
same  may  be  readily  ascertained  and  known.*  Any  descrip- 
tion adopted  by  which  the  identity  of  the  premises  intended 
to  be  conveyed  is  established,  will  be  sufficient,^^  and  a  descrip- 
tion not  sufficiently  certain  in  itself  may  be  made  so  by  ref- 
erence to  other  deeds  in  which  it  is  sufficient.^ 

§  14.  Description — Construction.  It  is  a  rule  of  construc- 
tion as  to  the  description  of  premises  in  a  deed,  that  the  least 
certain  and  material  parts  must  give  way  to  the  more  certain 
and  material.  Quantity  is  never  allowed  to  control  courses 
and  distances,*  and  courses  and  distances  must  yield  to  fixed 
monuments  and  natural  objects  also  referred  to  therein.*  But 
where  the  monuments,  if  once  existing,  are  gone,  and  the 
place  where  they  originally  stood  can  not  be  ascertained,  the 
courses  and  distances  when  explicit  must  govern,®  and  where 
the  boundaries  are  doubtful,  quantity  often  becomes  a  con- 
trolling consideration.''  Nor  will  the  rule  that  monuments, 
natural  or  artificial,  rather  than  courses  and  distances,  control 
in  the  construction  of  a  conveyance,  be  enforced  when  the  in- 
strument would  thereby  be  defeated,  and  when  the  rejection 
of  a  call  for  a  monument  would  reconcile  other  parts  of  the 
description  and  leave  enough  to  identify  the  land.*  An  er- 
roneous description  of  land  by  numbers  will  not  control  other 
descriptive  particulars  which  indicate  the  land  with  certainty.' 
AVhere.  as  is  often  the  case,  the  conveyancer  from  an  over 
anxiety  to  identify  the  property,  makes  two  descriptions,  the 
one,  as  it  were,  superadded    to  the  other,  and  one  description 

1  Coats  r.  Taft,  12  Wis.  888.  «Drew  v.  Smith,   46  N.   Y.  204; 

2  Smith  V.  Crawford,  81    111.  296;       Clark  r.  Wethy,  19  Wend.  .320. 
Allen  V.  Pates,  6  Pick.  4C0.  ''Winans  v.  Cheney,  55  Cal.  567. 

3  Russell  V.  Brown,  41  111.  184.  « white  v.  Luning,  93  U.  S.  (3  Ot- 
*  Bishop  V.   Morgan,  82   III.  352;      to)  515. 

Saunders  1!.  Schmaelzle,  49  Cal.  59.  'Bradshaw  v.  Bradbury,  64  Mo. 

^Dupont  V.  Davis,  30  Wis.  170;  334;     Montgomery  v.    Johnson,    31 

Sanders  v.   EldridLre,  46  Iowa,  .34;  Ark.  62. 
Cunningham  v.  Curtis,  57  N.  H.  157. 


FORMAL  PARTS  OF  DEEDS.  163 

being  complete  and  sufficient  in  itself,  the  other  incorrect,  the 
incorrect  desci'iption,  or  feature,  or  circumstance,  may  be  re- 
jected as  surplusage,  and  the  complete  and  correct  description 
allowed   to  stand  alone.* 

§  15.  Special  Recitals.  Immediately  following  the  de- 
scription are  usually  found  the  special  recitals,  reservations, 
exceptions,  conditions,  etc.,  though  in  forms  specially  pre- 
pared they  may  also  be  found  in  that  part  of  the  deed  technic- 
ally known  as  the  reddendum^  and  to  insure  certainty  all  of 
the  conveyance  from  the  habendum  to  the  testimonium  clause 
should  be  carefully  read  by  the  examiner  when  compiling  the 
abstract.  All  special  matter,  including  recitals,  references, 
exceptions,  reservations,  conditions,  limitations,  etc.,  should 
be  set  forth  fully  in  an  orderly  manner  and  whenever  prac- 
ticable, in  the  identical  language  of  the  deed  and  verified 
by  quotation  marks.  When  not  so  treated,  or  where  slight 
condensation  may  be  advantageously  employed,  the  matter 
should  be  preceded  by  a  parenthetical  statement,  to  indicate 
that  what  follows  is  a  transcription  and  not  an  observation  by 
the  examiner;  thus,  "Said  grantor  (it  is  stated)  to"  etc.  Re- 
citals in  deeds  bind  the  parties  thereto,  and  those  claiming 
under  them,^  and  a  grantee  is  chargeable  with  notice  of  facts 
recited  in  a  deed  which  constitutes  a  necessary  part  of  his 
chain  of  title,'  but  such  recitals  are  not  evidence  against  one 
who  holds  under  a  title  emanating  from  an  independent 
source.* 

§  16.  The  Habendum,  It  is  rarely  that  the  attention  of 
examiner  or  counsel  is  called  to  the  habendum  of  a  deed, 
which  as  a  rule,  unless  containing  a  declaration  of  trust,  or 
defining  the  limitation  of  an  estate,  may  be  ])assed  without 
notice  in  the  abstract.  Tiiough  formerly,  like  many  other 
technical  features,  of  great  importance,  it  has  now  degener- 
ated into    a    mere  form,*  and  in  the  statutory  conveyances 

iKruse  V.   Wilson,  79    111.   233;  Acer   v.  Wescott,    46  N.   Y.   348; 

Meyrs  v.  Lacld,  26   III.    415;    Wade  Bryne  v.  Morehouse,  22  111.  603. 

V.  Deray,  50  Cal.  876.  *  Lamar  r.  Turner,  48  Ga.  329. 

2Fisk  V.  Flores,  43  Tex.  340;  La-  H  Kent  Com.  463;  4  Blk.  Com. 

mar  v.  Turner,  48  Ga.  329.  298. 

«Pringle  v.  Dunn,  37  Wis.  449; 


164  ABSTKACTS    OF   TITLE. 

now  in  use  in  many  of  tiie  States,  is  entirely  omitted.  In 
general  the  liabendura  refers  to  tlie  premises  and  declares 
what  estate  the  grantee  shall  hold.  It  may  sometimes  en- 
large or  diminish  the  grant,  when  showing  a  clear  intention 
so  to  do,*  but  can  not  perform  the  office  of  divesting  the  estate 
already  vested  by  the  deed,  and  is  void  if  repugnant  thereto.^ 
Where  the  deed  purports  to  create  a  vested  or  contingent  re- 
mainder, or  conveys  property  in  trust  the  habendum  becomes 
important,  and  where  no  estate  is  mentioned  in  the  granting 
clause  it  becomes  efficient  to  declare  the  intention  and  rebut 
any  implication  which  would  otherwise  arise  from  the  omis- 
sion. 

§  17.  Exceptions  and  Reservations.  Everything  that  re- 
strains, qualities,  reserves  or  subtracts  from  the  grant  or 
thing  granted,  should  be  shown  on  the  abstract  with  minute- 
ness of  detail,  and  to  that  end  it  is  desirable  that  evei-ything 
in  the  nature  of  an  exception  or  reservation  be  copied  ver- 
batim. Both  a  reservation  and  an  exception  must  be  a  part, 
or  arise  out  of  that  which  is  granted  in  the  deed.  The  differ- 
ence is  that  an  exception  is  something  taken  back  or  out  of 
the  estate  then  existing  and  clearly  granted,  while  a  reserva- 
tion is  something  issuing  out  of  what  is  granted.^  Thus,  an 
exception  is  always  a  part  of  the  thing  granted,  and  of  a  thing 
in  being.*  A  reservation  is  of  a  thing  not  in  being,  but  is 
newly  created  out  of  the  land  or  property  demised.^  The 
usual  operative  words  to  create  an  exception  are  "  saving  and 
excepting,"  etc.,  but  the  terms  are  often  used  indiscriminately 
and  frequently  in  conjunction,  as  "excepting  and  reserving," 
etc.,  and  the  difference  between  the  two  is  so  obscure  in  many 
cases  that  it  has  not  been  observed."  Although  there  is  a 
technical  distinction  between  the  terms,  yet  where  "  reserv- 
ing" is  used  with  evident  intent  to  create  an  exception,  effect 

1  Corbin  v.  Healy,  20  Pick.  514.  *  Winthrop  v.  Fairbanks,  41  Me. 

2  Riggin  V.  Love,  72  111.  553;  Hali-      307. 

fax  V.  Stark,  34  Vt.  243;    Robinson  ^Gay  v.  Walker,  36  Me.  54. 

V.  Payne,  58  Miss.  G90.  *  Winthrop  v.  Fairbanks,  41  Me. 

3  Adams    v.    Morse,    51  Me.  497;  307. 
Kisteri'.  Reeser,  12  Rep.  377. 


FORMAL  PARTS  OF  DEEDS.  165 

should  be  given  to  it  in  that  sense.'  A  restriction  may  take 
effect  as  a  reservation,  if  it  does  not  necessarily  deprive  the 
grantee  of  the  essential  benefits  of  the  grant.^  The  same  cer- 
tainty of  description  is  required  in  an  exception  out  of  a  grant 
as  in  the  grant  itself,  as  where  a  deed  excepts  out  of  the  con- 
veyance one  acre  of  land,  and  there  is  nothing  in  the  excep- 
tion to  locate  it  upon  any  particular  part  of  the  tract,  the  ex- 
ception is  void  for  uncertainty,  and  the  grantee  takes  the 
entire  tract.'  Reservations  and  exceptions,  when  expressed 
in  a  doubtful  manner,  are  to  l)e  construed  most  strongly 
against  the  grantor,*  yet  if  the  intentions  of  the  parties  can 
be  fairly  ascertained  from  the  instruments,  such  intention 
will  govern  in  its  construction.* 

§  18.  Conditions  and  Limitations.  Analogous  to  the 
exceptions  and  reservations  of  a  deed  are  the  conditions  quali- 
fvinff  the  grant  and  limitations  or  restrictions  of  its  use.  both 
of  which  demand  the  closest  attention  on  the  part  of  examiner 
and  counsel.  As  in  the  case  of  reservations,  the  conditional 
or  restrictive  clauses  should  be  copied  word  for  word,  the  ab- 
stract showing  them  to  be  literal  quotations.  Conditions 
frequently  partake  of  the  nature  of  the  consideration  for  the 
conveyance,  and  declare  its  true  motive,  and  as  such  it  be- 
comes doubly  important  that  they  be  correctly  sliown.  Con- 
ditions are  divided  into  precedent  and  subsequent,  the  former 
being  something  which  must  bo  punctually  performed  before 
the  estate  can  vest,  and  deeds  containing  such  expressly  de- 
clare that  the  grant  is  i^j^o;^  such  condition.  A  condition 
subsequent  indicates  something  to  be  performed  after  the 
estate  vests,  the  continuance  of  such  estate  depending  upon 
its  performance.  The  character  of  cotiditions  precedent  or 
subsequent  depends  upon  the  intentions  of  the  parties,  as 
shown  by  a  proper  construction  of  the  whole  instrument,  not 
upon    the   precise   or    technical   words  used.*"     A  deed  upon 

>  Sloan  V.  Lawrence  Furnace  Co.,  Duryea  r.  New  York,  62  N.  Y.  592. 

29  Ohio  St.  5';8.  '  Wiley  v.  Sirdorus,  41  Iowa,  224. 

2  Gay  r.  Walker,  36  Me.  54.  SRogan  v.   Walker,    1    Wis.  527; 

3  Mooney  v.  Cooledge,  30  .\rk.  640.  Sheppard  v.  Thomas,  26  Ark.  617. 
*Wyman  v.  Farrar,  35   Me.   64; 


1G6  ABSTRACTS    OF    TITLE. 

condition  subsequent  conveys  the  fee,  witli  all  its  qualities  of 
transmission.  Tlie  condition  lias  no  effect  to  limit  the  title 
until  it  becomes  operative  to  defeat  it.'  Tiie  law  does  not 
favor  forfeitures,^  and  conditions  to  avoid  an  estate  must  be 
strictly  construed.  They  will  not  bind  the  heirs  or  assi>;ns 
unless  expressly  mentioned,^  nor  will  a  conditional  grant 
revert  on  breach,  there  being  no  clause  providing  for  for- 
feiture or  re-entry,*  and  until  defeated  by  an  actual  entry 
made  for  the  purpose  of  claiming  a  forfeiture,  by  some  one 
having  the  right  so  to  do,  the  estate  continues  in  the  grantees.^ 
Conditional  grants,  though  sometimes  running  to  individuals, 
are  usuallj'  found  in  dedicatory  conveyances,  or  deeds  to  re- 
ligious, charitable,  or  educational  institutions.  Restrictions 
on  the  use  of  property  conveyed  are  of  more  frequent  occur- 
rence, but,  unless  also  a  condition  subsequent,  do  not  work  a 
forfeiture  in  their  violation.  They  consist  usually  of  building 
regulations,  sanitary  measures  and  matters  involving  the  gootl 
morals  of  community,  as  prohibition  of  the  sale  of  intoxicat- 
ing liquors  on  the  premises,  etc.  Such  restrictions  are  recog- 
nized and  upheld  by  the  courts,  and  the  violation  of  same 
will  be  restrained  by  injunction.*  A  condition,  whether 
precedent  or  subsequent,  is  not  binding  after  the  party  impos- 
ing it  has  rendered  its  performance  impossible  or  unneces- 
sary.' 

§  19.  Covenants.  The  covenants  of  a  deed  add  nothing 
to  its  efficiency  as  a  means  of  conveyance,  and  a  quitclaim 
deed  will  as  eftectually  pass  the  title  and  covenants  running 
with  the  land  as  a  deed  of  bargain  and  sale,  if  no  words  re- 
strict its  meaning.*  The  covenant  clause  usually  immediately 
precedes  the  testimonium,  and    when  consisting  only  of   the 

iShattuck  V.  Hastings,  99  Mass.  Cowell  v.  Col.  Springs  Co.,  100  U. 

23.  S.  55. 

2Voris  V.  Renshaw,  49    111.  425;  'Jones   v.  R.  R.  Co.,  14  W.  Va. 

Hoyt  V.  Kimball,  49  N.  H.  322.  514. 

» Page  f.  Palmer,  48  N.  H.  385.  »  Morgan  v.  Clayton,  61    111    35; 

*  Packard  v.  Ames,  82  Mass.  327.  Rovve  e.  Becker,  30  Ind.  154;  Pingree 

5  Osgood  V.  Abbott,  58  Me.  73;  v.  Watkins.  15  Vt.  479;  Wh,te  r. 
Guild  V.  Richards,  82  Mass.  309.  Whitney,  3  Met.  81;  Hunt  v.  Am  . 

6  Dorr  V.  Harrahan,  101  Mass.  531;  don,  4  Hill,  345. 


FORMAL    PARTS    OF    DEED3.  167 

conventional  assurance  of  seizin,  rif^lit  to  convey,  freedom 
from  incumbrance,  quiet  enjoj'ment  and  warranty,  may  be 
passed  with  simple  notice,  or  if  the  deed  is  in  other  respects 
regular,  and  is  described  in  the  abstract  as  a  "  Warranty 
Deed,"  there  seems  no  good  reason  why  any  further  mention 
should  be  made,  particularly  if  the  client  -knows  such  to  be 
the  examiner's  custom.  There  is  no  uniform  rule  re<rardinfir 
their  insertion,  and  usually  inordinary  cases  they  are  omitted. 
Special  or  unusual  covenants,  or  such  as  seek  to  limit  the 
grantor's  liability,  should  be  noticed  at  such  length  as  their 
importance  seems  to  demand,  and  if  necessary  for  a  proj^er 
understanding,  be  literally  transcribed.  Covenants  are  either 
express  or  implied.  Implied  covenants  must  be  consistent 
with,  and  not  contrary  to,  the  express  covenants,^  and  where  a 
deed  contains  both,  the  latter  qualifies  and  restrains  the  for- 
mer.^ Covenants  are  also  classified  as  personal  and  real,  or 
those  which  run  with  the  land,  though  some  confusion  exists 
as  to  the  division  between  them.*  No  peculiar  words  are 
needed  to  raise  a  covenant,*  and  whatever  shows  the  intent  of 
the  parties  to  bind  themselves  to  the  performance  of  a  stipu- 
lation may  be  deemed  a  covenant  without  regard  to  the  form 
of  exjn'cssion.*  The  ancient  common  law  warranty  has  been 
superseded  by  personal  covenants,  and  never  had  any  practi- 
cal existence  in  this  country.*  The  weight  of  American  au- 
thority holds  that  the  covenants  of  seizin,  good  right  to  convey 
and  freedom  from  incumbrances,  are  in  presently  and  do  not 
run  with  the  land,  and  if  broken  at  all,  are  broken  at  the  in- 
stant of  their  creation.^  The  claim  for  damages  thereby  be- 
comes personal  in  its  nature  to  the  grantee,  and  is  not  trans- 
ferred by  a  conveyance  to  a  subsequent  grantee.*  Several  of 
the  States,  following  the  English  rule,  j)ermit  an  action  by  a 

'  Gates  V.  Caldwell,  7  Mass.  68.  ^  Tonp  v.  AVilson,  81  111.  529;  Ful- 

2  Kent  V.  Welch,  7   Johns.    258;       ler  r.  Jillett,  9  Reporter,  367. 
Sumner  r.  Williams,  8  Mass.  201.  « Salmon  r.    Vallejo,  41  Cal.  481; 

3  2  Bou.  Law  Diet.  ;'.27.  Dale  v.   Shively,  8  Kan.  276;    Pills- 
*Newcomb    v.  Presbrey,    8    Met.       bury  w.  Mitchell,  5  Wis.  17;  Moisten 

406.  V.  Hobbs,  2  Mass.   433;   Green  by  v. 

6  Taylor  v.  Preston,  79  Pa.  S\  436.       Kellog,  2  Johns.  2. 
''Jones  r.  Franklyn,  30  Ark.  631. 


168  ABSTRACTS    OF    TITLE. 

remote  grantee  in  liis  own  nanie  wliere  the  substantial  brcacli 
of  the  covenant  occurs  after  the  assignment,  and  the  whole 
actual  clan)age8  are  sustained  by  the  assignee."  Where  privity 
of  estate  exists  between  the  parties,  and  the  covenant  is  one 
about  or  atfecting  the  land  granted,  and  tends  directly  and 
necessarily  to  enhance  its  value,  or  render  it  more  beneficial 
to  those  by  whom  it  is  owned,  the  covenant  is  said  to  be  inci- 
dent to  the  land,  and  binding  on  those  in  whom  the  title  sub- 
sequently vests,^  and  it  is  a  general  principle  that  covenants 
which  run  with  the  land  pass  only  with  the  legal  title  thereto.' 
The  covenant  of  warranty  extends  only  to  the  right,  title  and 
interest  in  the  lands  bargained  and  sold  by  the  vendor.  The 
covenants  can  not  enlarge  the  premises.*  Where  a  covenant 
is  to  be  implied  from  statutory  words,  the  very  words  of  the 
statute  must  be  used  to  raise  it.^  In  a  conveyance  in  form 
a  "Warranty  Deed,"  but  omitting  any  of  the  customary 
covenants,  it  is  well  to  note  the  omission,  and  in  such  cases, 
where,  by  statute  covenants  are  implied  from  specific  words 
of  grant,  the  operative  words  of  conveyance  should  be  in- 
serted. 

§  20.  Execution.  The  execution  of  a  deed  technically 
comprises  the  signing,  sealing  and  delivery,*  and  in  some 
States  the  attestation  of  witnesses  as  well,  but  the  attention  of 
examiner  and  counsel  need  only  be  directed  to  the  two  for- 
mer, and  where  required  by  law,  the  attestation.  The  laws 
of  the  various  States  on  the  subject  of  execution,  though 
preserving  a  general  harmony,  are  by  no  means  uniform  nor 
have  they  always  been  the  same  during  the  governmental  ex- 
istence. The  examiner  should  be  fully  posted  on  all  the 
changes  of  the  law  in  respect  to  the  execution  of  deeds  in  his 
own  State,  and  carefully  observe  and  note  in  the  abstract  any 
defects  or  errors,  in  signatures,  seals  or  attestation,  and  any 

'  Richard  f.  Bent,  59  111.  38;  Sclio-  *Lamb  v.  Wakefield,    1  Sawyer, 

field  V.  Homestead  Co.,  32  Iowa,  317;  251. 

Cole  ».  K.mball,  52  Vt.  639.  ^  yjpo^,!  i,.  Hurlbnt,  22  111.  226. 

MVooliscroft  v.  Norton,  15  Wis.  *  Thorp    v.  Keokuk  Coal  Co.,  48 

198;  Wheeler  v.  Schad,  7  Nev.  201.  N.  Y.  253. 

3  Wright  V.  Speriy,  21  Wis.  331. 


FORMAL  PARTS  OF  DEEDS.  169 

non-compliance  with  statutory  requirements.  Extra  vif^ilance 
will  be  required  in  the  cases  of  married  women,  conveyances 
by  delegated  authority  and  corporations. 

§  21.  The  Signature.  Sealing,  not  signing,  was  the  sine 
qua  non  to  the  validity  of  the  common  law  deed,  and  a  signa- 
ture was  not  considered  necessary.  Sealing  is  now  of  little 
moment,  while  in  several  States  it  is  entirely  dispensed  with, 
and  the  deed  derives  its  efficacy  from  the  signature.  An  un- 
signed deed,  tlioughduiy  attested,  acknowledged  and  delivered, 
is  a  nullity.^  The  law  presumes  that  in  executing  instruments, 
parties  use  their  real  names,  and  does  not  presume  them  to 
have  different  names.  So,  where  the  record  of  a  deeil  |)ur])orted 
to  have  been  signed  by  Harmon  S.  and  acknowledged  by 
Ilirain  S.,  it  was  held  inadmissible  to  prove  a  conveyance  by 
Hiram, ^  as  onlj^  the  signer  can  acknowledge  as  grantor.  It 
is  doubtful,  however,  whether  this  can  be  received  as  the  ac- 
cepted doctrine,  the  volume  of  authority  inclining  to  the  con- 
trary, and  generally  if  the  grantor's  true  name  is  recited  in  the 
body  of  the  deed  and  he  also  acknowledges  it  by  his  true 
name,  the  fact  that  he  signs  it  by  a  wrong  name  does  not  in- 
validate the  conveyance.^  All  variances  of  this  nature,  being 
of  the  essence  of  the  conveyance,  require  full  notice.  A  deed 
signed  with  a  mark,  if  otherwise  regular,  may  be  treated  as 
properly  executed,  and  such  is  also  the  custom  of  examiners 
where  the  signature  is  in  a  foreign  language.  Where  an  in- 
strument is  found  with  a  signature  affixed  to  it,  the  presump- 
tion is,  that  the  party  signing  it  knew  its  contents,  and  there  is 
no  distinction  in  this  respect  between  those  who  can  and  those 
who  can  not  write.* 

§  22.  The  Seal.  The  formality  of  a  seal  is  required  in 
most  of  the  States  in  the  execution  of  conveyances  of  land, 
while  in  others  its  use  has  been  disj^ensed  with  b)'  statute. 
The  common  law  seal  has  been  defined  as  an  impression 
u])on  wax  or  wafer  or  some  other  tenacious  substance  capable 

1  Goodman    v.   Randall,  44  Conn.  Tnstin  v.  Fang-ht,  2.'>Cal.  257;  Zahnn 

32').  r.  llaller,  71  Ind.  136;  Houx  v.  Bat- 

^Boothroyd  v.  Engle,  2:'.  Mich.  19.  toen,  6S  Mo.  84. 

3  Middleton  V.  Findla,  25  Cal.  76;  *  Doran  v.  Mullen,  78  III.  342. 


170  ABSTRACTS    OF    TITLE. 

of  being  impressed/  but  as  the  record  would  fail  to  show  the 
method  of  sealing,  the  examiner  would  still  be  at  a  loss  to 
know  if  the  deed  had  been  properly  sealed,  were  this  rule  still 
in  effect.  In  a  majority  of  the  States  where  seals  are  still  re- 
quired, a  scrawl  has,  by  statute,  the  force  of  a  seal,  whenever 
it  appears,  from  the  body  of  the  instrument,  the  scrawl  itself, 
or  the  place  where  affixed,  that  such  scrawl  was  intended  for 
a  seal.^  Where  a  scrawl  is  allowed  for  a  seal,  the  word  "  seal" 
at  the  end  of  the  maker's  signature,  and  referred  to  in  the  tes- 
timonium clause,  creates  a  sealed  instrument;  the  word  "seal'' 
is  equivalent  to  a  scrawl.^  And,  generally,  an  instrument 
will  be  treated  as  sealed,  when  the  intent  to  affix  a  seal  is  clear.* 
It  has  been  held  that  where  the  record,  made  at  a  time,  and 
iin  'er  a  law,  permitting  the  registration  of  only  sealed  instru- 
ments, and  the  instrument  was  in  form  a  warranty  deed,  the 
conclusion,  attestation  and  certificate  of  acknowledgment,  all 
speaking  of  it  as  under  seal,  it  will  be  presumed  that  the  orig- 
inal was  sealed.  And  whether  or  not  it  was  the  legal  dutj'of 
the  recorder  to  indicate  upon  the  record  whether  the  instru- 
ment was  sealed,  his  omission  to  do  so  will  not  overcome 
the  presumption.*  If  one  of  several  obligors  named  in  an  in- 
strument which  purports  to  be  sealed  by  all  of  them,  neglects 
to  affix  his  seal  thereto,  in  the  absence  of  other  evidence  he 
will  be  deemed  to  have  adopted  the  seal  of  some  one  of  the 
other  signers,  and  will  be  equally  bound  with  them.*  It  is 
uimecessary  to  refer  to  the  execution  or  any  part  thereof  if  in 
all  respects  regular  and  in  conformity  to  law;  only  defects  or 
omissions  require  notice,  and  these  are  best  shown  by  a  literal 
transcription. 

§  23.  Attestation.  Subscribing  witnesses  are  not  necessary 
at  common  law,'  nor  in  many  of  the  States;  others  require  an 

1  Warren  y.   Lynch,  5  Johns.  239.      471;  L^Franc  r.  Richmond,  5  Saw 

2  Hudson  V.  Poindexter,  42  Miss.      yer,  601. 

304.  ®  Yale     v.    Flanders.  4  Wis.    96; 

^Groner   v.    Smith,  49  Mo.    818;  Norvell  v.   Walker,  9  W.  Va.  447; 

Lewis  V.  Overby,  28  Gratt.  (Va.)  627.  Mackay  v.  Bloodgood,  9  Johns.  285. 

*  Burton  v.  LeRoy,  5  Sawyer,  510;  '  1  Woods  Conv.  239;  2  Black. 
McCarley  v.  Supervisors,  58  Miss.  Cora.  307;  Dole  v.  Thurlow,  12  Met. 
749.  107. 

*  Starkweather  v.  Martin,  28  Mich. 


FORMAL  PARTS  OF  DEEDS.  171 

attestation  by  one  subscribing  witness  only,  wliile  in  a  ma- 
jority it  is  necessary  that  the  conveyance  be  executed  in  the 
presence  of  two  witnesses,  who  sliall  subscribe  their  names  to 
same  as  sucli.  As  tlie  matter  of  attestation  is  purely  statutory 
the  effect  of  omission  in  tliis  particular  is  to  be  decided  solely 
by  the  application  of  local  law.  The  usual  and  ordinary 
words  of  attestation  are  "  signed,  sealed  and  delivered  in  our 
presence,"  but  the  late  statutory  forms  of  conveyance  have 
somewhat  abbreviated  this  ancient  form  of  expression,  and 
the  words  "in  our  presence,"  immediately  following  the  tes- 
timonium clause,  and  followed  by  the  signatures  of  witnesses, 
is  a  good  and  sufficient  attestation.  When  required  at  all, 
attestation  is  usually  a  pre-requisite  to  registration,  and  any 
informality  in  this  respect  deprives  the  instrument  of  its  legal 
effect  as  constructive  notice.  When  properly  attested  no 
mention  seems  necessary  in  the  abstract,  while  omissions  or 
defects  may  be  indicated  by  some  simple  statement;  as,  "no 
subscribing  witnesses  shown  of  record." 

§  24.  Acknowledgment.  The  statutes  of  all  the  States  pro- 
vide for  a  proof  of  execution  of  conveyances  of  land,  by  an 
acknowledgment  of  same  before  some  officer  provided  by 
statute,  and  his  certificate  of  authentication.  Such  acknowl- 
edgment authorizes  the  production  of  the  instrument  in  evi- 
dence without  other  or  further  proof  of  its  execution,  and  is 
usually  a  pre-requisite  to  registration.  The  certificate  of  au- 
thentication is  no  part  of  the  conveyance,  and  is  not  the  act 
of  either  party  to  it,  but  only  evidence  in  regard  to  its  execu- 
tion and  acknowledgment  and  like  all  other  evidence,  should 
be  reasonably  considered  and  construed.*  Being  statutory 
creations  greater  strictness  is  necessary  in  their  construction, 
yet  it  is  a  well-settled  rule,  that  a  substantial  compliance  with 
statutes  prescribing  the  form  and  requisites  of  an  official  cer- 
tificate of  acknowledgment,  or  proof  of  deeds,  is  sufKcient. 
It  is  the  policy  of  the  law  to  u])hold  such  certificates,  when- 
ever substance  is  found,  and  not  to  suffer  conveyances,  or 
proof  of  them,  to  be  defeated  by  technical  or  unsubstantial 

'  Harrington  v.  Fish,  10  Mich.  415;  Gray  r.  Uhich,  8  Kan.  112. 


172  ABSTRACTS   OF   TITLE. 

Objections,  and  in  constrnini^  tliem  resort  may  be  nad  to  tlie 
deed  or  instrument,  to  wliich  the}'  are  appended,'  yet  notliing 
will  be  presumed  in  favor  of  an  official  certificate,  which  must 
state  all  the  facts  necessary  to  a  valid  official  act.''' 

The  official  acts  of  a  notary  should  be  authenticated  by  his 
seal,  particularly  when  a  non-resident  of  the  jurisdiction,  and 
usually  in  such  cases  his  certificate  must  also  be  accompanied 
by  a  certificate  of  magistracy  and  conformity  by  some  officer 
of  competent  authority.  The  seal  is  prima  facie  evidence 
that  the  person  using  it  is  a  notar}',  duly  commissioned,^  etc., 
and  its  absence  should  be  briefly  noted;  thus,  "No  notarial 
(or  official)  seal  shown  of  record."  As  a  rule,  a  notarial  cer- 
tificate from  another  State  without  a  seal  or  certificate  of  con- 
formity will  be  invalid,*  But  although  a  deed  is  defectively 
acknowledged,  or  even  not  acknowledged  at  all,  it  is  good  as 
between  the  parties,  and  subsequent  purchasers  with  actual 
notice,  and  passes  title  equally  with  one  duly  certified.  The 
certificate  does  not  affect  the  force  of  the  instrument.^  Ac- 
knowledgment, however,  is  a  requisite  for  registration,  and  a 
deed  must  be  legally  recordable  to  make  the  record  thereof 
constructive  notice."  The  certificate  should  state  the  fact  of 
acknowledgment,  and  should  fix  the  identity  of  the  party 
making  same,  these  being  the  great  essentials  of  every  official 
authentication,'  and  a  certificate  defective  in  this  respect  does 
not  show  a  substantial  compliance  with  the  requirements  of 
law,  w^hich  provide  that  the  grantor  shall  be  known,  or  hid 
identity  satisfactorily  proved  to  the  certifying  officer.^     "When 

1  Wells  V.  Atkinson,  24  Minn.  161 ;  Gray  v.  Ulrich,  8  Kan.  112;  Dole  r. 
Tubbs  V.  Gatewood,  26  Ark.  128;  Thurlow,  12  Met.  157;  Hoy  v.  Allen, 
Barnet  v.   Proskauer,    62  Ala.  486;      27  Iowa,  208. 

Calumet  Co.  t'.  Russell,  68  III.  426.  ^p^-jn^ig  v.  Dunn,    37  Wis.  449; 

2  W.tmore  v.  Laird.   5   Biss.   160.       Bass  v.  Estill,  50  Miss.  300;  Willard 

3  Brown  v.  Phil.  Bk.,   6   Serg.  &       v.  Cramer,  36  Iowa,  22. 

R.   4S4;    Stephens   v.  Williams,  46  ^  Bryan    v.    Ramirez,  8  Cal.    461; 

Iowa.  540.  Pendleton   r.  Button,  8  Conn.  406; 

*  Boo  h  r.  Cook,  20  111.  129;  Texas  Short  v.  Conlee,  28  111.  219. 

Land   Co.   v.   Wil  iams,  51  Tex.  51.  « Stuller  v.  Link,  2  Thomp.  &  C. 

See  also  the  local  statutory  provis-  (X.    Y.)    86;    Callaway  t'.  Fash.  50 

ions  on  this  subject.  Mo.  420;  Smith  v.  Garden,  28  Wis. 

5  Stevens  v.  Hampton,  46  Mo.  404;  685. 


FORMAL  PARTS  OF  DEEDS.  173 

regular,  tlie  certificate  is  noticed  at  the  conclusion  of  the 
synopsis  bj  a  brief  mention  of  the  fact  and  date,  as  "Ac- 
knowledged June  1,  1882."  Slight  defects  or  omissions  may 
be  shown  in  a  descriptive  waj',  as  "Acknowledged  June  1, 
1882,  by  William  Smith  only,"  or  "In  certificate  of  acknowl- 
edgment, said  jjrantor's  name  is  written  '  William  Smvthe.' " 
Defects  of  form,  insufficient  statement,  or  non-compliance  with 
the  statute,  will  frequently  require  an  entire  or  partial  tran- 
scription of  tiie  certificate.  The  acknowledgments  of  married 
women,  corporations,  and  persons  acting  by  delegated  power, 
or  in  an  official  capacity,  should  be  closely  scrutinized,  while 
in  several  of  the  States  the  deed  is  ineffectual  to  convey  the 
lioinestead  estate,  unless  the  statutory  right  is  specially  waived 
in  the  acknowledgment.  As  between  the  immediate  parties, 
the  certificate  may  be  impeached  for  fraud,  collusion,  or  im- 
position, but  not  otherwise,'  but  as  topurchasei-s  for  a  valuable 
consideration  without  notice,  it  is  conclusive  as  to  all  matters 
which  it  is  the  duty  of  the  acknowledging  officer  to  certify  if 
he  has  jurisdiction,^  and  wliere  an  officer  is  authorized  to  take 
acknowledgments,  it  will  be  presumed  that  they  were  taken 
within  his  jurisdiction.^  The  subject  will  be  further  consid- 
ered, with  practical  examples,  in  treating  of  specific  convey- 
ances. 

§  25.  Delivery.  No  principle  is  better  established  by  the 
entire  current  of  modern  authority  than  that  the  delivery  of 
a  deed  is  essential  to  the  transfer  of  the  title.  It  is  the  final 
act  consummating  and  confirming  the  conveyance,  and  with- 
out which  all  other  formalities  are  inefllectual.*  A  deed, 
though  duly  executed  and  otherwise  perfect,  while  remaining 
under  the  control  of  the  grantor,  passes  no  title.*  To  consti- 
tute a  sufficient  delivery,  the  deed  must  not  only  be  delivered 

1  Fitzgerald  v.  Fitzgerald.  100  111.  »  Pooplo  r.  Snydor,  41  N.  Y.  397. 

385.  *  Young  r.  Gailljcnui,  8  Wall.  (vUi; 

2 Williams   v.  Baker,    71    Pa.  St.  Whitaker    v.    Miilor,    83    111.   3S1; 

476;    Wharton    on    Evid.,  §  1,052;  Thatcher  c.  St.  Andrew's  Church,  37 

Borland  r.  Walrath,  33  Iowa,    130;  Mich.  264. 

Rowland  V.  Blake,  97  U.  S.  (7  Otto)  ^-Kgoi*-   r.    Woodard,    56  Me.  45; 

624.  Fisher  v.  Hall,  41  N.  Y.  416. 


174  ABSTRACTS   OF   TITLE. 

by  tlie  f^rantor,  but  mast  be  acce])ted  bj  the  grantee/  tliongh 
ordinarily  a  deliv^ery  of  a  deed  implies  an  acceptance.^  What 
constitutes  a  valid  delivery  or  acceptance  has  been  the  subject 
of  a  great  diversity  of  opinion  and  a  vast  number  of  reported 
decisions,  and  is  still  an  open  and  unsettled  question  to  be 
determined  by  the  particular  facts  of  each  case  under  the 
application  of  local  law.  These  questions,  however  important 
in  other  respects,  present  but  few  features  to  the  examiner, 
who  looks  only  at  the  instruments  as  thej''  appear  upon  the 
records,  and  passes  on  their  suffiaiency  and  legal  effect  from 
what  is  there  shown.  The  attestation  clause  usually  recites 
that  the  conveyance  was  "signed,  sealed  and  delivered,"  etc., 
but  this  has  been  held  not  in  itself  sufficient  to  establish  a 
delivery.'  The  recording  of  a  deed  affords  prima  facie  evi- 
dence of  its  delivery,*  and  where  the  grantor  in  a  deed  not 
delivered  caused  the  same  to  be  recorded,  this  was  held  a 
sufficient  deliverj' to  enable  the  grantee  to  hold  the  land  as 
against  the  grantor.^  Ordinarily  a  deed  will  be  presumed  to 
have  been  delivered  on  the  day  it  bears  date,®  thouuh  this 
presum.ption  is  not  conclusive.^  It  has  been  held  that  where 
the  date  of  acknowledgment  is  subsequent  to  the  date  of  the 
deed,  there  is  no  presumption  of  delivery  prior  to  the  ac- 
knowledgment.* The  volume  of  authority,  however,  does  not 
sustain  this  doctrine,  and  the  date  of  execution,  in  the  absence 
of  other  proof  to  the  contrary,  may  still  be  taken  as  the  true 
date  of  delivery,'  and  not  the  date  of  acknowledgment,  which, 

1  Compr  V.  Baldwin.  16  Minn.  172;  ^  Kerr  v.  Birnie,  25  Ark.  225. 
Commonwealth  v-  Jackson,  10  Bush  ^  Deininger    v.  McConneil,  41   111. 
(Ky.),  424.  228;  Treadwell  v.  Reynolds,  47  Cal. 

2  Davenport  v    Whistler,    46    la.  171;  Harman  v.  Oberdorfer,  33  Grat. 
287.          "  (Va.)497. 

sRuslin  V.  Shield,  11  Ga.  636;  but  UVhitman  v.  Henneberry,  73  111. 

see  Howe  v.  Howe,  99  Mass.  88.  109. 

*  Himes  v.  Keighblinger,   14    111.  ^  Fontaine  v.  Savings  Institution, 

469;  Barkholder    v.  Cased,  47  Ind.  57    Mo.    5")3.     "Washburn  also   an- 

418;    Kille    v.    Ege,  79   Pa.  St.  15;  nounces  the  same  principle.     See  3 

Jackson  v.  Perkins,    2   Wend.  308;  Wash.  Real  Prop.  (4th  Ed.)  286. 

Lawrence  v.  Farley,  24  Hu.i  (N.  Y.),  »  Hardin  v.  Crate,  78  111.  553;  Ells- 

293.                                    *  worth  v.  Cent.  R.  R.,  34  N.  J.  L.  93. 


FORMAL  PARTS  OF  DEEDS.  175 

as  a  matter  of  convenience,  may  well  have  been  made  after- 
ward/ So  where  a  grantee  dies  between  tlie  dates  of  the  deed 
and  its  acknowled<^ment,  it  will  be  presumed  that  the  deed 
had  been  delivered  in  his  lifetime.^  As  a  conveyance  derives 
its  effect  and  operation  only  from  delivery,  the  question  of 
time  will  not  infrequently  form  an  important  element  in  the 
methods  employed  by  counsel  in  framin^^  his  opinion  on  the 
title,  as  well  as  in  determining  the  respective  rights  and  rela- 
tions of  parties  who  hold  under  the  deeds,  or  who  show  con- 
flicting or  adverse  claims.  The  abstract  will  usually  shed  but 
little  light  on  itself,  and  under  ordinary  circumstances  it  will 
be  safe  to  proceed  on  the  assumption  that  tlie  date  of  execu- 
tion is  also  the  time  at  which  the  title  to  the  property  con- 
veyed passed  to  the  grantee.*  In  case  of  a  forged  instrument, 
there  is  no  presumption  of  delivery  either  at  its  date,  or  at 
any  other  time* 

§  26.  Ancient  Deeds.  Deeds  more  than  thirty  years  old 
are  called  ancient  deeds,  and  are  exempt  from  the  usual  tests 
applied  to  conveyances,  being  admitted  in  evidence  without 
proof  of  execution,^  and  where  a  deed  would  be  evidence  as 
an  ancient  deed  without  proof  of  its  execution,  the  power 
under  which  it  purports  to  have  been  executed  will  be  pre- 
sumed.'* This  rule  is  not  uniform,  however,  and  it  has  been 
held  that  a  convej'ance,  though  over  thirty  years  old,  can  not 
be  admitted  as  an  ancient  deed  when  purporting  to  be  exe- 
cuted by  one  acting  as  administrator  in  the  absence  of  ])roof  of 
his  authoritj'  to  make  the  deed.  And  when  such  autliority  is 
conferred  by  an  order  or  decree  of  the  court,  the  jurisdiction 
of  the  latter  to  grant  the  order  or  decree  must  be  shown  on 
the  face  of  the  proceedings.''  Some  discretion  may  be  cm- 
ployed    by   the  examiner    in    regard    to  conveyances  of  long 

'  People  ?J.  Snj'der,  41  N.  Y.  402;  of  enrollments.  See  also  Shep.Touch. 

Hardin  v.  Osborne,  60  111.  93.  72. 

^  Eaton  V.  Trowbridge,   38  Mich.  •*  Remington  Paper  Co.  r.O'Dough- 

454.  erty.  81  N.  Y.  474. 

*  Breckenridge  v.  Todd,   IG    Am.  ^Whitman  v.  Henoborrj',  73   Til. 

Dec.  83.     The   same  doctrine  is  rec-  109:  Gardner  r.  Oranniss,  57  Ga.  539. 

ognized  and   sanctioned  by  the  En-  *  Johnson  v.  Shaw,  41  Tox.  428. 

ghsh  decisions   mider  their  statutes  'Fell  v.  Young,  G3  111.  lOG. 


ITG  ABSTRACTS    OF   TITLE. 

standing,  and  under  which  the  riglits  of  tlie  parties  have 
become  fixed  by  continued  possession  and  enjoyment.  It  will 
not  be  necessary,  in  many  cases,  to  notice  defects  that  should 
invariably  appear  in  the  case  of  later  deeds,  particularly  when 
rendered  of  no  effect  by  curative  legislative  enactments. 

§  27.  stamps.  By  act  of  Congress,^  July  1,  1S62,  and 
acts  amendatory  thereto,^  an  ad  valorem  stamp  duty  was  im- 
posed on  conveyances  and  contracts  relating  to  real  property. 
The  act  provided  that  the  stamps  should  be  affixed  to  the  in- 
strnment  and  properly  canceled,*  and  in  default  thereof  the 
instrument  to  be  invalid.  The  act  became  in  force  on  and 
after  Oct.  1,  1862,  and  continued  for  a  period  of  ten  years. 
On  all  instruments  executed  during  this  period,  the  examiner 
will  observe  whether  the  record  purports  to  show  a  stamp. 
If  so,  it  should  be  shown  briefly,  as  "  TJ.  S.  Int.  Rev\  Stamps 
for  $1.50  affixed,"  or  if  none,  "Ko  Int.  Rev.  Stamp  shown  of 
record."  The  presence  or  absence  of  the  stamp,  however, 
matters  little  so  far  as  the  validity  of  the  conveyance  is  con- 
cerned, for  it  is  not  in  the  constitutional  power  of  Congress  to 
prescribe  for  the  States  a  rule  for  the  transfer  of  property 
within  them,*  nor  to  provide  rules  of  evidence  for  the  State 
courts,^  and  conveyances  are  not  rendered  void  by  the  omis- 
sion of  the  stamps,®  nor  for  neglect  to  cancel  same  if  afiixed.' 
The  act,  so  far  as  it  prescribes  a  rule  of  evidence,  is  operative 
onlv  in  the  Federal  courts,  and  has  no  application  to  the 
courts  of  the  States.* 

1 12  U.  S.  Stat.  475.  Brown  v.  Thompson.  59    Me.   372; 

2 13  U.  S.  St  it.  299.  Morris  v.  McMorris,  44  Miss.  441. 

2 13  U.  S.  Stat.  293.  ^Agricultural  Assoc,  v.  Neill,  31 

*  Moore  v.  Moore,  47  N.  Y.  467.  Iowa,  95;    D'Armond  v.  Dubose,  22 

5  Barbour  v.  Gates,  43  N.   Y.  40;  La.  Ann.  131. 

Craig  V.  Dimock,  47  111.  308.  » Wilson  v.  McKenna,  52  III.  43; 

6  Janvi-in  v.  Fogg,  49  N.  H.  340;       People  v.  Gates,  43  N.  Y.  40;  Sam- 
Rhienstrom  v.  Cone,  26  Wis.  163;      mons  v.  Halloway,  21  Mich.  162. 


CHAPTER  xiy. 

ERRORS,    OMISSIONS    AND    DEFECTS. 

§  1.  Error  gen  orally.  §  7.  Misrlescription— Omission. 

2.  Defect  of  parties — Grnntor.  8.  Misdescription— Quantity. 

3.  Defect  of  parties — Grantee.  9.  Defective  covenants. 

4.  Disparity  of  dates.  10.  Defective  acknowledg'raent. 

5.  Technical  phrases.  11.  Continued. 

6.  Misdescription — Uncertainty.  12.  Repugnancy. 

§  1.  Error  Generally.  Conveyancers,  like  other  mortals, 
have  no  iinmunity  from  error.  Not  onl}'^  do  the  best  skilled 
often  forget,  but  ignorance  and  carelessness,  as3uinin<r  the  of- 
fice and  functions  of  conveyancers,  augment  their  mistakes  a 
thousand  fuld.  Superadded  to  these,  are  the  errors,  blunders 
and  omissions  arisiu":  durinor  tlie  transcribing  from  the  o:'if>-- 
inal  documents  to  the  record,  the  whole  forming  a  source  of 
constant  watchfulness  on  the  part  of  examiner  and  counsel. 
The  errors  most  common  are  found  in  disparity  of  dates;  the 
acknowledgment  frequently  antedating  the  execution  and  oc- 
casionally the  date  of  registration  having  priority  of  both. 
Discrepancies  in  names:  a  particular  name  appearing  in  the 
premises,  another  in  the  execution  and  ofttimes  yet  anotlier  in 
the  acknowledgment;  manifest  misdescriptions  of  the  prop- 
erty as  compared  with  preceding  conveyances,  sometimes  glar- 
ing and  obtrusive  and  again  retiring  and  only  discernible  by 
close  and  concentrated  attention.  Omissions  are  more  fre- 
quent and  palpable.  They  are  usually  the  result  of  negli- 
gence on  the  part  of  the  conveyancer  or  recorder,  and  call  for 
a  corresponding  degree  of  care  on  the  part  of  the  examiner. 
AVhere  printed  forms  are  used  in  conveyancing,  blanks  are 
frequently  improperly  filled,  or  quite  as  often  left  untouched. 
This  will  be  fou)id  to  be  the  case  in  dates,  personal  pronouns, 
12  (177) 


178  ABSTRACTS    OF    TITLE. 

references  to  the  parties,  venue  and  the  like.  Misdescil^ttions 
of  tiie  ]nv)perty  often  occur  where  the  conveyancer  coj)irs  the 
description  from  some  okler  deed  in  whicli  fi^i^ures,  initials, 
words,  a  coarse  or  distance,  or  even  a  whole  line  will  be  i>mit- 
ted  and  pass  unnoticed  until  detected  by  the  examiner.  These 
errors  aj')pearing  on  the  face  of  the  record,  it  is  the  duty  of 
the  examiner  to  detect  and  carefully  note  in  such  a  man- 
ner that  the  attention  of  counsel  will  be  drawn  to  tliem  on 
the  perusal  of  the  absti-act. 

§  2.  Defect  of  Parties — Grantor.  A  discrepancy  will  fre- 
quently be  noticed  between  the  names  of  the  j^rantors  in  the 
body  of  the  deed,  written  usually  by  the  conveyancer,  and 
those  in  the  execution,  written  by  the  parties  personally.  In 
this  case,  where  the  variation  is  slight,  the  difference  may  be 
shown  by  writing  the  name  as  found  in  the  signature,  in  the 
caption,  and  adding  a  statement  at  the  conclusion  of  the  synop- 
sis substantially  as  follows: 

In  body  of  deed  (  and  certificate  of  aclcnmidedgment)  said 
granto7''s  name  is  v^ritten  "  George  A.  /Smith.^^ 

The  error  being  indicated  in  both  names  by  an  underscore. 

Discrepancies  similar  to  the  one  just  noticed  are  frequent, 
but  fortunately  comparatively  harmless.  The  law  knows  but 
one  christian  name,  and  the  omission  or  insertion  of  a  middle 
name  is  immaterial,'  and  usually  if  there  is  a  variance  between 
the  names  of  the  grantors  as  they  appear  in  the  body  of  the 
deed  and  in  the  signatures,  the  identity  of  the  persons  will  be 
presumed,  until  rebutted,  where  the  deed  has  been  properly 
acknowledged.''  In  case  of  a  radical  difference  in  orthogra- 
phy or  sound,  tlie  names  in  the  premises  should  form  the  cap- 
tion and  the  execution  should  be  set  forth  fully.  It  sometimes 
liappens  that,  through  inadvertence  or  mistake,  the  name  of 
the  grantor  has  been  entirely  omitted  in  the  body  of  the  deed, 
and  while  it  has  been  held    that  one  who  signs,  seals  and  de- 

»  James  v.  Stil  s,  14 Pet.  322;  Dunn      nings,  68  Ind.  232. 
».  Gaines,  1  McLe  m,  321 ;  Erskine  v.  ^  Lyon  v.  Kain,  36  III.  362. 

Davis,  2J    111.  251;  Scofield  v.  Jen- 


ERROKS,    OMISSIONS    AND    DEFECTS,  179 

livers  a  deed  is  bound  by  such  acts  as  grantor,  aUliougli  not 
named  as  snch  therein/  the  current  of  hater  decisions  would 
indicate  that  such  a  deed  is  ineffectual  to  conve_y  any  interest 
or  pass  title.''  Where  only  a  portion  of  the  grantors  named 
in  a  conveyance  sign  and  acknowhulge  same,  the  authorities 
are  somewhat  divided  as  to  the  effect  of  the  deed;  some  hold 
that  where  the  deed  shows  that  it  was  intended  to  be  jointly 
executed  by  all  the  parties,  an  execution  and  delivery  by  a 
portion  only  is  incomplete  and  does  not  bind  them,''  a  major- 
ity of  the  cases,  however,  favor  the  contrary  doctrine  and 
seem  to  sustain  the  principle,  that  the  parties  executing  will 
be  bound  thereb}^,  and  the  deed  be  sufficient  to  pass  their 
interests.* 

§  3.  Defect  of  Parties — Grantee.  Defects,  of  the  nature 
which  forms  the  caption  to  this  section,  arise  mainly  from  im- 
perfect designation,  misnomer  and  omission,  and  from  their 
nature  are  not  susceptible  of  easy  detection.  In  cases  of  mis- 
nomer they  will  frequently  appear  only  inferentially  by  com- 
parison with  other  instruments,  but  when  detected  attention 
should  be  drawn  to  them.  Where  a  deed  is  to  William  Har- 
mon followed  by  a  conveyance  from  William  J.  Hermann, 
there  is  an  a]iparent  break  in  the  chain  and  the  examiner 
should  call  attention  to  same  by  a  row  of  short  marks  under 
each  name,  thus,  ITerinann.  Where  an  understanding  also 
exists  between  examiner  and  counsel,  this  method  of  notation 
will  also  serve  to  signify  that  this  is  the  identical  manner  in 
which  they  appear  upon  the  records,  and  is  not  due  to  anj'' 
negligence  of  transcription  on  the  part  of  the  examiner.  De- 
fects similar  to  that  now  under  consideration,  are  latent  de- 
fects and  susceptible  of  parol  explanation,  and  where  no  new 
deeds  are  made,  affidavits  showing  the  identity  of  the  parties 
should  be  required  by  counsel.  In  construing  deeds  of  this 
character,  i.  e.,  where  a  partj'^  takes  under  a  misnomer,   but 

1  Elliott  y.  Sleeper,  2  N.  11.  5'2r);  ?,22;  Peaboily  ».  Hewitt,  52  Ma.  03; 
Thompson  v.  Lovrein,   82    Pa.    St.       Bank  r.  Rice,  4  How.  22o. 

432.  "Arthur  v.  Anderson,  9  S.  C.  234. 

2  Harrison  v.  Simmons,  55  Ala.  *  Story  Part.,  §  119;  Parsons  Part., 
510;  Lau^^hlin  v.  Fream,  14  W.  Va.       §  oG9. 


ISO  ABSTRACTS    OF    TITLE. 

conveys  by  Lis  proper  name,  courts  are  ever  inclined  to  grant 
the  widest  leniency,  for,  in  the  great  influx  of  foreign  speak- 
ing po})ulation,  which  the  United  States  is  constantly  receiv- 
ing, mistakes  must  occur  in  adapting  to  the  English  forms  of 
pronunciation,  foreign  names  and  the  spelling  of  same,  lience 
it  has  been  held  that  a  deed  to  Mitchell  Allen,  followed  by  a 
deed  from  Michael  Allaine,  is  not  a  fatal  variance,  and  will  be 
presumed  to  be  the  same/  Grantees  capable  of  identitication, 
though  not  fully  named,  as  a  deed  to  John  Smith  and  the 
"other  heirs  at  law  "  of  one  deceased,  would  convey  an  estate 
to  all  the  heirs  of  such  deceased  person  as  fully  as  if  each  were 
specifically  named,^  yet  where  one  of  such  "  heirs"  attempted 
to  assert  title,  the  abstract  should  show  by  legal  evidence  his 
right  so  to  do.  The  converse  of  the  last  proposition  is  not  true, 
however,  and  a  conveyance  to  such  person  specified,  and  the 
heirs  of  a  living  person  would  be  void  as  to  all  except  the  person 
specifically  named.^  It  seems  almost  unnecessary  to  remark 
that  a  deed  without  the  name  of  a  grantee  is  absolutely  void.* 

§  4.  Disparity  of  Dates.  A  frequent  defect  in  deeds  is  a 
disparity  of  dates,  that  is,  the  acknowledgment  antedating  the 
execution,  etc.  This  is  a  minor  defect,  however,  that  does  not 
go  to  the  foundation  of  the  deed,  for  the  date  may  be  disre- 
garded in  a  proper  case  and  the  deed  will  yet  stand. 

In  point  of  form  the  date  is  not  essential,  and  is  valuable 
chiefly  as  an  evidence  of  time  in  passing  on  the  rights  of  par- 
ties, or  fixing  the  status  of  the  conveyance  in  respect  to 
other  deeds  or  transfers  of  title,  yet  for  the  purpose  of  opera- 
tive conveyance,  the  time  of  delivery  is  the  true  date,  and  this 
may  always  be  shown  by  parol.  Attention  is  called  to  defects 
or  disparities  of  dates   by    a  broad    dash    or    underscore,    as 

"  Dated  June 18S3,"  or  "Dated  June  iJ,  1883."     In  the 

latter  case,  both    dates,  or  as  many  as  appear  irreconcilable, 
must  be  treated  in  this  manner,  and  the  disparity  will  thus  be 

^  Chiniquy  v.  Catholic  Bishop,  41  Winslow  v.  Winslow,  52  Tnd.  8;  but 
111.  148.  see  Grimes    v.    Orrand,    2    Heisk. 

2  Cook  V.  Sinnamon,  47   111.   214;       (Tenn.)  298. 

Low  V.  Graff,  80  III.  360.  *  Whitaker  v.  Miller,  83  111.  381. 

3  Hall    V.    Leonard,   1    Pick.    27; 


EURORS,    OMISSIONS   AND   DEFECTS.  181 

brouglit  prominently  before  the  notice  of  the  person  perusing 
the  abstract. 

§  5.  Technical  Phrases.  Whenever  it  is  apparent  that  a 
grantor  has  used  a  technical  word  to  express  an  idea  different 
from  its  technical  signification,  a  court  will  construe  it  ac- 
cording to  the  manifest  intention  of  the  grantor,  ^  but  in  as- 
certaining such  intent,  where  the  words  employed  are  not 
technical,  they  must  bo  taken  in  their  usual  acceptation.'  In 
conveyancing  a  large  number  of  phrases  have  obtained  cur- 
rency, which,  practical!3%  neither  add  to  nor  detract  from  the 
force  of  that  which  precedes  or  follows,  but  are  retained  and 
used  in  much  the  same  inanner  as  numerous  other  incidents 
of  modern  deeds,  rather  for  their  supposititious  efficacy  than 
for  any  real  utilit3\  Of  this  class  is  the  language  "  more 
or  less,"  which  is  extensively  used  in  deeds  and  contracts 
for  the  sale  of  land.  This  term  must  be  understood  to  apply 
only  to  small  excesses  or  deficiencies  attributable  to  the  varia- 
tion of  the  instruments  of  surveyors,  etc'  In  like  manner  the 
words  "  known  as,"  in  a  description  in  a  deed,  is  a  mere  for- 
mula and  has  no  restrictive  effect.*  "  And  all  the  buildings 
thereon,"  etc.,  have  no  legal  signification.*  So,  also,  many 
phrases  in  the  body  of  the  deed  are  witliout  force;  as,  the 
words  "  to  his  and  their  proper  use  and  behoof,"  etc.,  follow- 
ing the  words  of  limitation.  These  words  have  no  particular 
meaning  or  effect  in  determining  either  the  extent  of  the  in- 
terest conveyed,  or  the  nature  and  quality  of  the  estate  in- 
tended to  be  vested.  In  deeds  of  bargain  and  sale  they  serve 
no  office  whatever.*  AVords  and  phrases  similar  to  the  forego- 
ing, detract  nothing  from  the  deed  b}''  their  omission  and  do 
not  call  for  notice,  but  where  technical  words  of  limitation, 
purchase,  inheritance,  etc.,  are  omitted  in  deeds  purporting  to 
convey  only  limited  or  special  interests  or  estates,  it  will  some- 

iC.  ?.  R.  R.  Co.r.  Beal,   47  Cal.  «Kneeland  r.  Van   Valkenburgh, 

151.  46  Wis.  4:^4. 

2  Bradshaw  r.  Bradshaw,  64  Mo.  *  Crosby  v.  Parker,  4  Mass.  110. 

334.  «  Jackson    v.  Gary,  IG  Johns.  802; 

^ Benson  r.  Humphreys,  12  Ilei)ort-  Brain  v.  Renshaw,  12  Reporter,  622 
er,  591. 


1S2  ABSTRACTS    OF    TITLE. 

times  becoinc  advis!il)le  to  show  sncli  omission,  to<^etlier  vv-itli 
such  parts  of  the  habendutn  or  other  operative  portions  of  the 
deed  as  will  snppl}^  the  missing  words,  or  indicate  the  undefined 
intent  of  the  (grantor,  Tlie  intent,  when  apparent,  and  not  re- 
pugnant to  any  rule  of  law,  will  always  control  technical 
terms;  for  the  intent  and  not  the  words,  is  the  essence  of 
every  agreement.^ 

§  6.  Misdescription — Uncertainty.  Airibiguous  and  nn- 
certain  descriptions,  particularly  when  composed  of  calls  for 
courses  and  distances,  are  among  the  most  common  defects 
found  in  modern  deeds.  They  arise  frequentlj^  from  the  care- 
lessness and  inattention  of  the  conveyancer,  but  more  often 
from  a  false  economy  in  the  survey,  the  draughtsman  comput- 
ing his  distances  and  framing  his  courses  by  reference  to 
some  former  map  or  survey,  and  not  by  actually  running  them 
in  the  field.  This  very  convenient  but  equally  pernicious  sys- 
tem prevails  to  an  alarming  extent  in  modern  conveyancing, 
and  when  attempted  by  incompetent  hands,  is  usually  followed 
by  uncertainty  if  not  fatal  error.  In  all  cases  of  description 
by  metes  and  bounds,  the  description  in  the  deed  under  exam- 
ination should  be  compared  with  both  former  and  subsequent 
ones  as  given  in  other  conveyances,  and  with  the  true  descrip- 
tion that  forms  tlie  subject  of  the  examination.  This  task 
should  be  performed  both  by  the  examiner  and  by  counsel, 
and  is  a  precaution  never  to  be  omitted.  An  imperfect  or  un- 
certain description  does  not  of  itself  vitiate  the  conveyance, 
provided  it  afi'ords  definite  means  by  which  the  identity  of 
tlie  premises  may  be  established;  as  by  reference  to  certain 
known  objects  or  things,'^  or  to  perfect  descriptions  in  other 
deeds.^  In  the  absence  of  references,  or  other  identifying  cir- 
cumstances, if  the  land  be  so  inaccurately  described  as  to  ren- 
der its  identity  wholly  uncertain,  the  grant  is  void,*  and  the 
same  rule  applies  with   equal   force  to  exceptions  or  reserva- 

»  Callins  V.  Lavelle,  44  Vt.  230.  *  Calcord  v.  Alexander,  67  Til.  581 ; 

2  Coats  V.  Taft,  12  Wis.  388;  Smith  Campbell  v.  Johnson,  44   Mo.    247; 
V.  Crawford,  81  111.  296.  Dickins  v.  Barnes,  79  N.  C.  490. 

3  Russell  V.  Brown,  41  111.  184. 


EKRORS,    OMISSIONS    AND    DEFECTS.  183 

tioiis  from  the  :^rant,  wliich,  thongli   the  i,n-aiit   may   prevail, 
tlie  exception  may  be  void  for  uncertainty/ 

Imperfect  descriptions  creating  uncertainty  by  reason  of 
vagueness  are  common,  particuhirly  incase  of  tax  deeds;  as, 
'"200  ac3.  in  Sec.  2,"  etc.;  no  particular  portion  of  the  section 
being  designated.  A  deed  is  not  necessarily'  void  for  un- 
certaintj'  where  land  is  described  by  a  general  name  ordesi*'-- 
nation,  which  by  extrinsic  evidence  can  be  fully  identified,'' 
and,  as  a  general  rule,  a  deed  will  only  be  held  void  for  uncer- 
tainty, where,  after  resort  to  oral  proof,  it  still  remains  a  mat- 
ter of  conjecture  what  was  intended  by  the  instrument.'*  It 
will  be  understood,  however,  that  this  alludes  only  to  latent 
ambiguity.* 

§  7.  Misdescription — Omission.  One  of  t1ie  principal  ele- 
ments of  uncertainty  in  descriptions  is  produced  by  the  omis- 
sions of  essential  particulars,  though  the  effect  of  such  omis- 
sions is  not  the  same  in  all  the  States.  The  name  of  the  coun- 
ty and  State  in  which  the  land  is  situate  usually  precedes, 
and  sometimes  follows  the  pai-ticular  description.  Its  inser- 
tion tends  to  greater  certaint}',  yet  the  entire  omission  of  this 
particular  is  of  minor  consequence,  providing  the  section, 
town  and  range  be  correctly  stated,  as  there  can  be  but  one 
localit}'  answering  that  description,^  but  a  description  giviiif 
simply  the  subdivision  of  the  section,  and  omitting  the  section, 
town  and  range,  would  be  so  detective  that  it  would  convey 
nothing,®  even  though  the  county  and  State  were  given.^  A 
material  omission  will  not  usually  invalidate  an  instrument, 
where  other  adequate  elements  of  identification  exist.* 

§  8.  Misdescription  —  Quantity.  A  recital,  in  a  convey- 
ance of  land,  that  the  tract  contains  a  certain  number  of  acres, 

>  Thayer  c.  Torry,  37  N.  J.  L.  ^"d;  ■    113;  Fuller  v.  Fellows,  30   Ark.  657; 

2  Tucker  v.  Field,  51  Miss.  191.  but  compare  Butler  v.  Davis,  5  Neb. 

3  Saiith  V.  Crawford,  81  111.  296.  521. 

*  Bowers  v.  Andrews,  52  Miss.  596.  ^  Such  a  deed,  though  inoperative 

*  Howe  V.  Williams,  50  Mo.  252;  as  a  conveyance,  would  raise  an  eq- 
Beal  V.  Blair,  r>3Iowa,  318;  Slater  v.  uity  in  the  land  soug'ht  to  be  con- 
Breese,  36  Mich.  77;  Compare,  Lloyd  veyed  in  favor  of  the  grantee:  Lloyd 
V.  Bunce,  41  Iowa,  660.  v.  Bunce,  41  Iowa,  G60. 

*  ToUensou  v.  Gunderson,  1  Wis.  *  Slater  v.  Breese,  36  Mich.  77. 


184  ABSTRACTS    OF    TITLE. 

will  alwa.ys,  unless  there  is  an  express  covenant  as  fo  quantity, 
be  regarded  as  a  part  of  the  description  mei-ely,  aiid  if  incon- 
sistent with  the  calls  of  the  deed,  will  be  rejected  as  surplus- 
age.* Such  a  recital  aids,  but  does  not  control,  the  descrip- 
tion of  the  grant. 

§  9.  Defective  Covenants.  Defective  covenants  form  a 
fruitful  source  of  litigation,  as  well  as  of  vexation  and  annoy- 
ance, and  the  examiner  should  devote  especial  care  in  abstract- 
ing this  portion  of  the  deed,  to  the  end  that  through  his  neg- 
ligence the  intending  purcliaser  may  not  also  buy  a  lawsuit. 
The  majority  of  these  errors  arise  througii  the  stupidity  or 
carelessness  of  incompetent  draughtsmen  in  the  use  of  printed 
forms,  and  unless  closely  scrutinized  will  sometimes  escape 
the  eye  of  an  expert  examiner.  A  familiar  example — one  oc- 
curring more  frequently,  perhaps,  than  any  other — is  in  the 
commencement  of  the  collective  covenant  clause,  which  reads: 
"  And  the  said  parties  of  the  first  part  for — ."  Here  follows, 
in  the  printed  blank,  a  space  intended  to  be  filled  by  the  con- 
veyancer, with  a  personal  pronoun  descriptive  of  the  granting 
party  or  parties.  The  conveyancer  neglects  to  till  this  space, 
and  the  clause  continues,  "their  heirs,"  etc.,  "do  cov- 
enant," etc.  Ilei-e  there  is  certainly  no  direct  covenant  on 
the  part  of  the  granting  parties,  and  in  a  similar  case  in  Illi- 
nois, it  was  held  that  the  legal  effect  of  a  covenant  of  this 
character  is  not  that  the  grantors  will  defend  the  title,  but 
that  the  same  shall  be  defended  by  their  heirs,  etc;  that  it 
does  not  ffive  a  riofht  of  action  against  granturs  on  the  loss  of 
the  title,  but  provides  a  remedy  against  their  legal  and  per- 
sonal representatives;  that  it  exempts  the  grantors  from  per- 
sonal liability,  but  binds  their  descendants  in  respect  of  the 
estate  that  may  be  cast  upon  them;  that  it  is  not  like  a  cov- 
enant that  a  person  who  is  not  a  party  to  the  deed  shall  war- 
rant and  defend  the  title,  for  in  such  case,  upon  the  eviction 
of  the  grantee,  and  the  failure  of  such  third  person  to  comply 
with  the  terms  of  the  covenant,  an  action  might  be  maintained 

1  FuU.'r  V.   Carr,  33  N.  J.  L.  157;       Ufford  v.  Wilkins,  33  Iowa,  110. 
Campbell  v.   Johnson,  44  Mo.  247; 


EERORSj    OMISSIONS    AND    DEFECTS.  185 

against  tlie  grantor,  on  the  familiar  principle  tliat  wliat  a 
party  undertakes  shall  be  performed  by  another,  he  must  him- 
self perform  on  the  default  of  that  otlier.  Here,  the  covenant 
is  that  the  act  shall  be  performed  1)}^  parties  who  can  have  no 
legal  existence  during  the  life  of  the  grantors,  and  until  their 
decease  there  is  no  person  living  who  can  be  called  upon  to 
avouch  the  title.'  A  covenant  by  grantors — "  for  them,  heirs," 
etc. — has  been  co)istrued,  "  themselves,  their  heirs,"  etc.,  and 
held  to  be  the  covenant  of  grantors.^  The  neglect  to  insert 
"•'  their  heirs,"  etc.,  after  the  allusion  to  the  grantors,  is  onlv  a 
minor  defect,  and,  while  it  calls  for  notice,  is  attended  with 
BO  evil  consequences.  The  legal  effect  of  the  covenant  would 
be  the  same  if  all  reference  to  the  heirs,  executoi-s  and  admin- 
istrators were  omitted,'*  and  this  applies  as  well  to  grantees 
as  to  grantors. 

§  10.  Defective  Acknowledgment.  The  office  of  the  ac- 
knowledgment is  to  authenticate  the  deed,  but  to  be  effective 
for  this  purpose,  it  must  conform  to,  or  substantially  follow, 
the  directions  of  the  statute,  both  as  to  the  certifying  officer 
and  the  form  and  substance  of  the  certificate.  The  cei'tificate 
is  no  part  of  the  conveyance,  but  only  evidence  of  its  execu- 
tion, and,  like  all  other  evidence,  is  reasonably  considered  and 
construed.*  A  substantial  compliance  with  the  statute  pre- 
scribing its  form  and  requisites  is  all  that  is  required,^  and 
minor  defects  not  going  to  the  essence  of  the  acknowledgment 
may  be  disregarded.  Clerical  errors  are  common,  and  arise 
mainly  in  the  use  of  printed  forms  where  blanks  are  im])rop- 
erly  filled  or  passed  over  without  filling.  Courts  are  always 
inclined  to  construe  such  defects  liberally,'*  and  only  pur- 
chasers for  value  can  take  advantage  of  a  defective  acknowl- 
edgment.''    Where   a  certificate  stated  that  "Personally  ap- 

1  Rufner  t7.  MoConnpl.  14  111.  1G8;  »Hall  v.   Bumstead,    20  Pick.  2; 

Traynor  v.  Palmer,  86  111.  477.     The  Bell  v.  Boston,  101  Miiss.  506. 

error    above    indicated  is   common,  ^  HarringTon  r.  Fish,  10  Midi.  415. 

and  can   even  be  found  in  books  of  ^  Calumet,  etc.,  Co.  v.  Bussell,  6S 

"practical     forms."       See     ''New  111.  426;  Carpenter  v.  Dexter,  8  Wall^ 

Wisconsm  Form  Book,"  p.  92,  form  61:5. 

Ko.  2.  *  Scharfenburj?  r.  Bishop,  85  I;\.  60. 

-  Baker  v.  Hunt,  40  111.  264.  ''  Mastin  v.  Halley,  Gl  Mo.  196. 


18G  ABSTRACTS    OF    TITLE. 

peared  before  me  P.  11.  and  E.  II.,  liis  wife,  who per- 
sonally known  to  me,"  etc.,  omitting  "are"  after  "who,"  it 
was  held  that  such  omission  did  not  impair  the  deed,  as 
"who"  mii^ht  be  disregarded  as  superfln(nis,  and  the  certifi- 
cate would  then  be  correct.^  So  where  the  word  "  appeared" 
was  omitted  after  the  phrase  "  i)efure  me  personally',"  the 
omission  was  held  to  be  a  clerical  error,  and  not  fatal  to  the 
validity  of  the  instrument,^  and  generally  when  the  defect  can 
be  reconciled,  or  does  not  defeat  the  acknowledgment  by  in- 
deliniteness  or  uncertainty,  it  will  not  invalidate.^  A  ma- 
terial omission,  unaided  by  other  circumstances,  will  vitiate 
the  acknowledgment,  as,  where    pnr])()rting    to    be    made  by 

Smith,  without  otlier  designation  of  the  person;*  but  it 

lias  been  held  that  where  the  certiticate  omits  the  name  of  the 
grantor,  but  shows  that  the  party  who  appeared  before  the 
officer  was  the  grantor,  and  refers  to  him  by  name  in  the 
wife's  acknowledgment,  it  would  be  sufficient.*  In  all  cases, 
the  error  or  omission  should  be  clearly  indicated  by  the  ex- 
aminei",  and  in  such  a  manner  that  counsel  can  pass  upon  it 
M'ith  relation  to  the  context,  and  so  much  of  the  certiticate 
should  be  presented,  in  all  cases  which  seem  to  require  it,  as 
will  effectuate  this  end. 

§  11.  Defective  Acknowledgment — Continued.  The  want 
of  a  seal  is  usually  no  defect  where  the  land  conveyed  is 
within  the  certifying  officer's  jurisdiction,  but  its  presence  is 
made  by  statute  an  indispensable  requisite  when  the  officer 
resides  beyond  the  State.  A  certificate  defective  in  venue  is 
insufficient  for  failing  to  show  the  locality  in  which  the  act  is 
done,  though  this  may  be  cured  by  the  certificate  of  con- 
formity,** or  even  b}^  the  seal,'  when  the  county  only  has  been 
omitted,  and  the  officer  has  authority  to  exercise  his  office  in 
any  part  of  the  State,  but  this  omission  has  been  held  in  Iowa 
to  be  fatally  defective,  and  the  seal  inefficient  to  cure  the  de- 

1  Hartshorn  v.  Dawson,  79  Til.  108.  Hlaorness  v.  Arnold,  31  Ark.  103. 

2  Scliarfeuburg  t\  Bishop,  35  Iowa,  «  Hardin  v.  Osborne,  60  111.  93. 
60.  '' Chiniquy  v.  Bishop  of  Chicago, 

3  Cffden  V.  Walters,  12  Kan.  282.        41  111.  148. 
*Hiss  V.  McCabe,  45  Md.  77. 


ERRORS,    OMISSIONS    AND    DEFECTS.  1S7 

feet.'  The  main  defects  of  substance  are  a  failure  to  state  the 
fact  of  acknowledgment,  or  to  fix  the  identity  of  the  partie^;.'^ 
The  certificate  must  state  the  fact  of  acknowledgement.  It  is 
this  which  forever  afterward  binds  the  party,  even  though  he 
may  not  acknowledge  the  instrument  freely  in  point  of  fact; 
yet  if  he  acknowledge  properly,  he  is  afterward  estopped  to 
deny  his  act  as  against  subsequent  innocent  purchasers.  The 
officer  is  bound  to  know  and  certify  the  identity  of  the  person 
making  the  acknowledgment.  Such  person  must  he  known  to 
him  as  the  person  who  executed  the  instrument  and  so  certi- 
fied, and  a  certificate  deficient  in  this  respect  is  fatally  de- 
fective.^ The  examiner  will  further  observe,  in  case  of  foreign 
acknowledgments,  that  the  officer's  certificate  conforms  to  local 
regulations,  and  if  not,  that  it  is  accompanied  by  a  certificaie 
of  magistracy  and  conforniity  by  some  competent  officer. 
Should  no  such  certificate  appear,  after  noting  the  defects  or 
divergence,  the  examiner  will  add:  '•  No  certificate  of  magis- 
tracy or  conformity  shown  of  record."  When  accompanied 
by  such  certificate,  its  ])urport  should  appear,  thus: 

C  ert'ificate  of  magistracy  and  conformnity  hy  Jno.  Smith, 
Clerk  of  the  Circuit  Court,  Cooh  County,  III.,*  ajppended. 

In  case  of  foreign  notaries,  etc.,  a  certificate  of  magistracy 
is  usually  required  by  statute,  but  where  the  notary's  certifi- 
cate is  in  conformity  to  local  law,  the  certificate  of  magistracy 
need  not  be  noticed  in  the  abstract,  its  main  office  being  to 
cure  defects  of  form.  A  commissioner  appointed  by  the  Gov- 
ernor of  a  State  to  take  acknowledgments  of  deeds,  etc.,  in 
another  State,  is  an  officer  of  the  State  from  which  he  derives 
his  appointment.     The  courts  of  that  State  are  bound  to  take 

'  Willard  v.  Cramer,  36  Iowa,  22.  The  unqualified  and  positive  aflfirnui- 

^  Bryan    v.    Ramirez,  8  Cal.  461;  tion  that  the  magistrate's  sig'uature 

Pendleton  v.  Button,   3  Conn.  406;  to  the  acknowledgment  is  genuine. 

Short  D.  Coulee,  28  111.219.  necessarily  implies,  on  the  part  of 

^Callaway  v.  Fash,  50  Mo.  420;  the  clerk,  both  a  knowledge  of  the 

Smith  V.  Garden,  28  Wis.  685.  handwriting   an<l   his    belief  of   its 

*  Here,  if  desired,  set  out  any  por-  genuineness:     Wells  v.  Atkinson,  24 

tion  of    the    certificate;  as   that  the  Minn.  161. 
othcer's    signature    is    genuine,  etc. 


188  ABSTRACTS    OF    TITLE. 

judicial  notice  of  his  acts,  and  these  require  no  otlier  autlicn- 
tication  than  his  seal  of  otRce/  Ilis  certificate,  however 
should  be  in  conformity  witli  tlie  laws  of  tlie  State  from  which 
he  derives  his  autliority.^ 

§  12.  Repugnancy.  Where  there  is  a  disaf^reemcnt  or 
inconsistency  between  two  or  more  clauses  of  a  deed,  it  is  a 
general  rule  that  the  earlier  clause  will  prevail  if  the  incon- 
sistency be  not  so  <:^reat  as  to  avoid  the  instrument  for  uncer- 
tainty.' This  rule  is  always  applied  where  an  estate  is  ex- 
pressly granted,  and  which  is  followed  by  a  reservation, 
exception,  or  condition  which  destroys  tlie  grant,*  In  the 
matter  of  description,  where  there  is  a  clear  repugnance,  effect 
will  always  be  given  to  that  which  is  most  definite  and  cer- 
tain, and  which  will  carry  out  the  evident  intention  of  the 
parties.* 

1  Smith  r.  Van  Gilder,  26  Ark.  527.       Ark.  128. 

2  Brannon  v.  Brannon,  2  Disney  ^Cutler  v.  Tufts,  3  Pick.  277; 
(Ohio),  224.                                               Pynchon  v.  Sterns,  11  Met.  S04. 

^2Bou.  Law  Diet.  466,  and  cases  ^  Wade    v.    Deray,    60    Cal.  376; 

cited,  and  see  Tubbs  v.  Gatewood,  26      Kruse  v.  Wilson,  79  111.  233. 


CHAPTER  XY. 


CONVEYANCES    BY  INDIVIDUALS. 


§  1- 

Deeds  in  g'eneral. 

§17. 

2. 

Deeds  poll  and  indentures. 

18. 

3. 

Construction  of  deeds. 

19. 

4. 

Validity. 

5. 

Warranty  deeds. 

20. 

6. 

Abstract  of  warranty  deeds. 

7. 

Xotes. 

21. 

8. 

Quitclaim  deeds. 

9. 

Abstract  of  quitclaim  deeds. 

22. 

10. 

Effect    of   covenants    in  quit- 

claim deeds. 

23. 

11. 

Special  warranties. 

12. 

Statutory  forms. 

24. 

1:3. 

Common  law  conveyances. 

14. 

Release. 

25. 

15. 

Confirmation. 

26. 

16. 

Surrender. 

27. 

Assignment. 

Conveyances  in  fufuro. 

Conveyances  ot  special  inter- 
ests and  estates. 

The  same — Continued — Illus- 
tration of  special  eases. 

Restrictive  and  conditional 
conveyances. 

Prohibited  conveyances — Ad- 
verse seizin. 

Continued — Fraudulent  con- 
veyances. 

Conveyances  subject  to  incum- 
brance. 

Dedication  by  deed. 

Resulting  trusts. 

Re-records  and  duplicates. 


§  1.  Deeds  in  General.  In  the  United  States,  the  teclinic- 
al  principles  relating  to  common  law  conveyances  seem  to  be 
wholly  or  in  a  great  measure  inapplicable.  The  tendency  of 
modern  legislation,  as  well  as  the  current  of  later  decisions, 
has  been  to  simplify  the  forms  of  conversance  and  to  reduce 
the  number  of  the  methods.  The  deeds  commonly  in  use,  and 
bv  which  the  o^reat  V)ulk  of  real  estate  transactions  between  in- 
dividuals  is  effected,  are  tlie  deed  of  bargain  and  sale,  popular- 
ly known  as  ''Warranty  Deeds"  and  the  deed  of  release  and 
quitclaim,  known  as  "Quitclaim  Deeds."  To  these  may  bo 
added  a  third,  a  deed  of  non-claim,  combining  qualities  pecul- 
iar to  both  of  the  other  classes,  and  called  "Special  Warranty 
Deeds,"'  wherein  the  grantor  covenants  only  against  his  own 


'  The  above   enumeration,  though 
the   conveyances     assume    different 


forms,  is  in  reality  but  one  kind  of 
deed,  to  wit,  a  bargain  and  sale. 


(189) 


190  AESTRACTS    OF    TITLE. 

acts  and  those  who  daitn  undor  liim,  and  not  against  adverse 
or  ]:)arain()Uiit  titles.  They  are  all  effectual  to  convey  the  fee, 
or  whatever  interest  the  i^rantor  may  jtossess,  and  will  always 
do  so  unless  a  contrary  intention  is  exjiressly  manifest  or  clear- 
ly deducible  by  implication. 

§  2.  "  Deeds  Poll  "  and  Indentures.  Conveyances  of  land 
were  formerly  classed  as  "deeds  poll"  and  '"indentures,"  the 
former  being  where  an  obligation  was  incurred,  or  an  estate 
conveyed,  by  only  one  of  the  parties  to  the  transaction,  the 
other  being  a  mere  recipient;  tlie  latter,  on  the  other  hand, 
contained  mutual  transfers  or  covenants,  the  one  in  exchange 
for  the  other,  A  deed  poll  was  a  single  instrument,  signed 
by  one  party,  and  delivered  to  the  other;  an  indenture  con- 
sisted of  two  or  more  parts,  of  the  same  tenor,  executed  in  du- 
plicate by  both  parties,  and  interchangeably  delivered  by  one 
to  the  other.  The  name  "indenture,"  is  said  to  have  origi- 
nated from  the  practice  of  writing  both  parts  of  the  agree- 
ment upon  one  parchment,  and  then  cutting  them  asunder  in 
acute  angles.'  The  phrase  "this  indenture"  still  forms  the 
initial  to  deeds  of  bargain  and  sale,  though  such  convej^ances 
are  in  effect  deeds  poll,  and  affords  another  instance  where 
comnjon  law  forms  of  expression  have  been  retained  after  their 
original  meanino^  and  technical  siii^nificance  have  been  lost. 

§  3.  Construction  and  EITect  of  Deeds.  The  general  con- 
struction of  deeds  is  favorable  to  their  validity,  and  although 
courts  can  not  give  effect  to  an  instrument  so  as  to  do  violence 
to  the  rules  of  language  or  of  law,  they  will  yet  so  construe  it 
as  to  bring  it  as  near  to  the  actual  meaning  of  the  parties,  as 
the  words  they  have  seen  fit  to  employ,  and  the  rules  of  law 
will  admit.^  The  intention  of  the  parties,  when  it  can  be  as- 
certained, will  always  control,  if  by  law  it  may,  and  as  be- 
tween them  the  deed  is  always  construed  most  strongly'- 
against  the  grantor.^     When  the  words  of  a  deed  are  so   un- 

^2       Hill.    Abridgment,    280;    2  38;  Hadden  r.  Shoutz,  15   111.    .581; 

Wash.  Real   Prop.    587  ;    2  Shars-  Jackson  v.  Meyers,  3  Johns.  395. 

wood's  Black.  Com.  294.  ^City    of     Alton    v.    Transporta- 

2  Calling  V.  Lavalle,   44    Vt.   230;  tion  Co.,  12  111.  38;   Jackson  v.  Hud- 
Churchill   V.  Reamer,  8  Bush  (Ky.),  son,  3  Johns.  375. 
256;  Peckham  v.   Haddock,  36  111. 


CONVEYANCES   BY   INDIVIDUALS.  11>1 

certain  that  the  intention  of  the  parties  can  not  be  discovered, 
the  deed  is  void.'  In  the  exposition  of  deeds,  tlie  construc- 
tion must  be  upon  the  whole  instrument,  and  with  a  view  ro 
give  every  part  of  it  meaning  and  effect,  and  the  intent 
wlien  apparent,  and  not  repugnant  to  any  rule  of  law,  will 
control  technical  terms.*  "Where  a  deed  purports  to  convey 
all  the  interest  and  title  of  the  grantor,  effect  will  be  given 
to  it  accordingly,  although  he  actually  held  a  greater  interest 
than  he,  at  the  time  of  the  conveyance,  supposed  he  owned, 
for  a  party  is  bound  to  know  enough  about  his  title,  as  not, 
by  his  want  of  knowledge,  to  mislead  a  purchaser." 

§  4.  Validity.  In  all  works  treating  on  convevancinf, 
or  the  alienation  and  descent  of  real  propert}',  the  subject  of 
validity  of  conveyances  of  land  as  affected  by  extraneous  evi- 
dence, rightl}^  occupies  a  prominent  position,  yet  in  a  work  of 
this  character  it  can  receive  little  more  than  passing  notice. 
The  principal  facts  which  tend  to  invalidate  deeds,  aside  from 
defects  of  form  or  substance,  which  appear  from  inspection, 
are:  incapacity  of  the  parties;  inadequacy  of  consideration; 
fraud  in  the  inception;  and  undue  influence  or  duress  in  the 
procurement;  all  of  which  must,  from  their  several  natures, 
be  shown  by  evidence  aliunde^  the  conveyance  upon  its  face 
being  regular  and  the  formalities  of  law  having  been  fully 
complied  with.*  There  is  an  important  distinction  between 
void  and  voidable  deeds,  although  the  terms  are  oiteu  used 
indiscriminatel3^  A  deed  absolutely  void  passes  no  title, 
while  a  deed  which  is  voidable  merely  may  be  tlie  foundation 
of  a  good  title  in  the  hands  of  a  subsequent  purcliaser  with- 
out notice.*  The  term  "  void  "  is  seldom,  nnless  in  a  very 
clear  case,  to  be  regarded  as  implying  a  complete  nullity; 
but  it  is,  in  a  legal  sense,  sul)ject  to  large   qualifications  in 

^  Rollin  V.  Pickett,    2   Hill.  552;  legal  title,  af?  shown  by  the  rocorils, 

Jackson   v.   Eosvelt,  V^  Johns.  97;  for  a  valuable  consideration,  with- 

Peoria  v.  Darst,  101  111.  671.  out  noticeof  any  outstanding  equity, 

2  Callins  v.   Lavalle,  44  Vt.  230;  will     be    protected     against    such 

Saunders  v.  Hanes,  44  N.  Y.  253.  equity,  even  though  he  himself  had 

^  Thomas  r.  Chicngo,  55  III.  403.  notice  thereof:     Peck  v.  Arehart,  95 

*  A  purchaser  of  land  from  a  prior  111.  113. 

"bona  Jide  holder  who  acquired  the  ^  Crocker  v.  Ballangee,  G  "Wis.  645. 


192  ABSTRACTS   OF   TITLE. 

view  of  all  the  circumstances  calling  for  its  application  and 
the  riglits  and  interests  to  be  affected  in  a  given  case.' 
Statutes  not  infrequently  declare  acts  void,  which  the  tenor 
of  their  provisions  necessarily  makes  voidable  only.  Deeds 
are  seldom  absolutely  void,  though  they  may  be  relatively  so, 
and  incapable  of  legal  effect  as  between  the  parties,  but  in 
regard  to  the  consequences  to  third  persons  the  distinction  is 
highly  important.^  Matters  inpais  are  seldom  known  to  tlie 
examining  counsel,  who  is  justified  in  pronouncing  that  a 
good  title  which  appears  so  of  record,  and  which  in  fact  is 
such,  until  assailed,  or  set  aside  by  competent  authority.  As 
respects  subsequent  purchasers  without  notice,  the  right  or 
title  conferred  by  a  conveyance  is  to  be  determined  by  the  in- 
strument itself  as  recorded,  and  not  by  facts,  i?i pais  or  other 
instruments  not  recorded.^  Latent  ambiguities  and  defects  do 
not  nsually  avoid  the  deed,  and  a  deed  intended  to  correct  an 
error  in  a  former  deed  by  the  same  grantor,  will  cure  much 
defect,  and  take  effect  by  relation  as  of  the  time  when  the 
erroneous  deed  was  given,  the  same  as  if  it  had  been  re- 
formed in  equity.* 

§  5.  Warranty  Deeds.  The  most  familiar  form  of  convey- 
ance known  to  our  law,  is  the  deed  of  bargain  and  sale  tech- 
nically called  a  warranty  deed.  The  legal  import  of  a  deed 
of  this  character  is  simply  that  there  is  no  resulting  trust  in 
the  grantor,  who  is  estopped  from  ever  after  denying  its  exe- 
cution for  the  uses  and  purposes  mentioned  in  it,^  while  its 
name  is  derived  from  the  personal  covenants  which  follow 
the  habendum.  The  operative  words  of  conveyance  in  this 
class  of  deeds,  are  "grant,  bargain  and  sell,"  which  in  many 
States  are  express  covenants  of  seizin,  freedom  from  incum- 
brances, and  quiet  enjoyment,^  unless  their  statutory  effect  is 

J  Brown    v.   Brown,     50    N.   H.  »  IMiller  p.   "Ware,    31  Iowa,  524; 

5P>8;   Kearney  v.   Vaug-hn,    50  Mo.  Peck  r.  Areliart,  95  III.  llo. 
284.  *  Hutchinson  v.  R.  R.  Co  ,  41  Wis. 

2  Bromly   v.  Goodrich,    40    Wi.s.  541. 
131;    Seylar  v.  Carson,   69  Pa.   St.  ^Kimball  r.  Walker,  30  111.  482. 

81;   Van    Schaac    v.     Robbins,    36  ^Prettyman  t?.  Wilkey,  19  111.  235; 

Iowa,  201;   Kearney  v.  Vaughn,  50  Hawk  v.  McCullough,  21  111.  220. 
Mo.  284. 


CONVEYANCE    BY    INDIVIDUALS.  103 

rendered  nugatory  or  limited  bj  express  words  contained  in 
such  deed.'  It  is  still  a  comnaon  practice  for  the  conveyancer 
to  insert  in  warranty  deeds,  as  well  as  in  other  classes  of  con- 
veyances, all  the  operative  terms  used  in  transferring  land; 
as,  "grant,  bargain,  sell,  reraise,  release,  alien,  convey  and 
confirm,"  though  their  presence,  save  where  they  innply  cove- 
nants, is  no  longer  necessary.  This  was  formerly  done,  that 
the  instrument  might  take  eft'ect  in  one  way  if  not  in  another, 
and  in  such  case  the  party  receiving  the  deed  had  his  election 
which  way  to  take  it.  Thus,  according  to  the  words  used,  he 
might  claim  either  by  grant,  feoffment,  gift,  lease,  release, 
confirmation  or  surrender.  The  majority  of  the  foregoing 
words  of  grant  are  now  superfiuous,  except  that  in  a  few 
States  the  words  "grant,  bargain  and  sell"  must,  under  the 
statute,  be  construed  as  express  or  implied  covenants,  for 
seizin,  ao^ainst  incumbrances,  etc.,^  vet  the  rule  that  the  law 
of  the  State  where  the  land  lies  governs  the  interpretation  of 
the  deed,  does  not  warrant  the  implication  of  personal  cove- 
nants, not  authorized  by  the  law  of  the  State  where  the  deed 
was  m.ade.  The  question  whether  the  words  shall  import 
covenants  must  be  decided  by  the  law  of  the  latter  State.'  It 
must  also  be  understood  that  some  words  evidencing  an  inten- 
tion to  convey  must  appear,  but  the  conveyancer  has  a  choice 
of  a  number,  and  the  word  "convey,"  which  is  most  in  use, 
fully  expresses  the  intent,  and  is  effectual  for  all  purposes.* 

§  6.  Abstract  of  Warranty  Deed.  In  preparing  an  abridg- 
ment of  ail  ordinary  deed  of  bargain  and  sale,  when  drawn  in 
the  usual  manner  and  unincumbered  by  any  unusual  condi- 
tions or  stipulations,  only  the  salient  features  are  necessary, 
it  being  understood  that  the  deed  is  in  form,  and  that  all  the 
essential  requisites  have  been  complied  with.  Were  this 
otherwise  the  abstract  would  become  unnecessarily  bulky  and 
cumbersome,  and  defects  when  sliown  would  be  less  readily 

1  Finley  v.  Steele,  23  111.  56.  deed  in  fee  is  given  in  4  Kent  Com. 

^Brodie  r.  Watkins,  31  Ark.  319;  461;   and    see    Ilutchins    v.    Carle- 

Finley  v.  Steele,  23  111.  56.  ton,  19  N.  H.  487;    Bridge  v.  Wel- 

^Buthel  V.  Bethel,  54  Ind.  428.  lington,  1  Mass.  219. 
*  An  extremely  simple  form  of  a 
13 


194.  ABSTKACTS    OF    TITLE. 

detected.  This  is  the  universal  cnstom  of  examiners,  and  tlio 
method  seems  to  have  met  tlie  approbation  of  the  legal  pro- 
fession. An  ordinary  conveyance  is  snfficientlj  presented  as 
follows : 

John  Smith,  and        ^        Warranty  Deed. 
Mary  B.,  his  wife,         !       Dated  June  7,  188^. 

to  f       Recorded  June  S8,  188^. 

Thomas  L.  Jones.         J         Volume  28,  paye  10. 

Consideration  %1,000.00. 
Conveys  land  in  Racine  county,  Wis.,  described  as  lot 
fourteen,  of  hloch  twenty-eight,  of  RoswelVs  Addition  to  the 
village  of  Emmetsburgh,  being  a  fart  of  the  northeast  quar- 
ter of  section  thirty-six,  town  two  north,  range  fourteen,  east 
of  the  third  princijMl  meridian. 
Acknowledged  June  1,  1882.^ 

The  foreo^oing  example  presupposes  good  work  on  the  part 
of  conveyancer  and  examiner,  and  that  the  instrument  as 
sliown  of  record  is  regular  in  form  and  properly  executed  and 
acknowledged.  It  further  carries  the  presumption  that  no  re- 
citals appear,  other  than  those  common  to  all  deeds  of  bargain 
and  sale,  and  that  all  the  covenants  necessary  for  the  proper 
assurance  of  the  estate  conveyed  appear.  Shonld  the  exam- 
iner desire,  however,  to  note  the  covenants  he  may  insert, 
"  Full  covenants  of  seizin  and  warranty."  Defects  of  form 
or  substance,  occurring  in  any  part  of  the  deed,  must  be  suit- 
ably noticed  as  suggested  in  the  preceding  chapter.  In  ancient 
deeds  the  habendum  may  be  shown  thus,  "  habendum  tci  heirs 
and  assigns." 

§  7.     Notes.     The  matter  of  examiner's  notes  has  already 
been  discussed.     These  should  be  appended,  whenever  practi- 

*  In  the  abstract  of  ancient  con-  heritance  has  been  dispensed  with  in 

veyances  it  may  be  necessary  to  show  a  majority  of  the  States  for  upwards 

a  trifle  more  than  is  here  noted.  The  of  fifty  years,  their  insertion  or  omis- 

words  of  inheritance  in  the  premises  sion  in  ancient  grants  will  have  but 

and  habendum  may  be  material  in  little  effect  on  the  titles  of  to-day, 

determining  the  nature  of  the  estate  which,  though   defective  orio-inally, 

conveyed,  but  as  the  necessity  of  the  have  been  perfected  by  the  effluxion 

word  "  heirs  "  or  other  words  of  m-  of  time. 


CONVEYANCE    BY    INDIVIDUALS.  19o 

cable,  immediately  after  the  deed  to  whi'ch  they  allude;  as,  in 
the  foregoing  example,  if  the  abstract  is  of  the  original  in- 
strument and  not  of  the  record  thereof,  a  mention  of  the  fact 
immediately  follows  same,  thus  : 

Note. — Tlie  jparticulars  of  tlie  foregoing  deed  taken  from 
the  original  instrument. 

§  8.  Quitclaim  Deeds.  A  quitclaim  deed  is  as  effectual 
for  transferring  the  title  to  real  estate  as  a  deed  of  bargain 
and  sale,'  and  passes  to  the  grantee  all  the  present  interest  or 
estate  of  the  grantor,^  together  with  the  covenants  running 
with  the  land,  unless  there  be  special  words  limiting  and 
restricting  the  conveyance.^  But  while  a  quitclaim  deed  is 
as  effectual  to  pass  title  as  a  deed  of  bargain  and  sale,  still, 
like  all  other  contracts,  it  must  be  expounded  and  enforced 
according  to  the  intention  of  the  parties  as  gathered  from  the 
instrument,  and  if  the  words  used  indicate  a  clear  intention 
to  pass  only  such  land  or  interests  as  the  grantor  then  owns, 
lands  embraced  in  a  prior  valid  deed  have  been  held  to  be 
reserved  from  its  operation,  even  though  such  prior  deed 
remains  unrecorded.* 

It  is  a  rule,  however,  of  general  application,  that  a  quit- 
claim deed,  wdien  recorded,  takes  precedence  of  a  prior  un- 
recorded warranty  deed  from  the  same  grantor,  the  pur- 
chaser under  the  quitclaim  having  no  notice  of  the  prior  deed, 
and  there  being  no  words  therein  suggestive  of  an  earlier  con- 
veyatice.*  A  quitclaim  deed,  though  effectual  as  a  present 
conveyance,  when  unaccompanied  by  warrant}',  will  not  op- 
erate to  carry  a  subsequently  acquired  title,®  nor  can  one  who 
takes  under  such  a  deed  be  regarded  as  a  hona  fide  purchaser, 

1  Morgan  v.   Clayton,  61   111.  85;  GrafFv.  Middleton,  43Cal.  341;  Mar- 
Rowe  V.    Becker,  30   Ind.  154;  Pin-  shall  v.  Roberts,  18  Minn.  405. 
gree  v.  Watkins,  15  Vt.  479.  «  Comstock  r.  Smith.  13  Pick.  116; 

2  Nicholson  v.  Caress,  45  Tnd.  479;  Jackson  v.  Winslow,  9  Cow.  13;  Ilar- 
Carter  v.  Wise,  39  Tex.  273.  riraan  v.  Gray,  49  Me.  538;  Kinsman 

s  Brady  v.  Spruck,  27  111.  478.  v.   Loomis,  11  Ohio,  475;    Miller  r. 

*  Hamilton  v.  Doolittle,  37  111.  473.       Ewing,  6  Cush.  34. 
"Brown  v.  Coal  Oil  Co.,  97  111.  214; 


19G  ABSTRACTS   OF    TITr.E. 

without  notice  of  outstandini^  titles  and  equities.^  lie  obtains 
just  such  a  title  as  the  vendor  had,  and  the  land  in  his  hands 
remains  subject  to  all  the  equities  attaching  to  it  in  the  hands 
of  the  vendor,  though  they  noay  be  unknown  to  such  ])ur- 
chaser.^  But  it  would  seera  this  harsh  doctrine  is  not  a])])li- 
cable  in  all  cases.  It  prevails  in  settling  conflicting  titles,  and 
is  intended  to  j)rotect  equities  as  against  those  charged  with 
notice  of  their  existence,  but  is  never  invoked  to  protect  a 
fraudulent  grantor  who,  by  false  representations  induces  a  con- 
fiding purchaser  to  believe  that  he  acquires  a  good  title  under 
a  quitclaim  deed.*  In  the  absence  of  fraud,  however,  a  party 
accepting  a  quitclaim  deed  takes  the  risk  of  the  title,*  for 
where  a  person  purchases  of  another  who  is  willing  to  give 
only  a  quitclaim,  he  may  properly  enough  be  regarded  as 
bound  to  inquire  and  ascertain  at  his  peril  what  outstanding 
equities  exist,  if  any.  His  grantor  virtually  declares  to  him 
that  he  will  not  warrant  the  title  even  as  against  himself,  and 
it  may  be  presumed  that  the  purchase  price  is  fixed  accord- 
ingly.^ A  different  rule  prevails  as  to  the  grantee  of  one 
holding  under  a  quitclaim,  when  such  grantee  holds  by  a  war- 
ranty deed,  and  in  such  case  such  subsequent  grantee  is  pre- 
sumed to  be  a  honafide  purchaser  for  value.  Pie  is  not  af- 
fected by  the  mere  fact  that  he  takes  through  a  quitclaim 
deed,  and  will  take  the  title  free  from  outstanding  equities  of 
which  he  had  no  notice.  It  is  the  policy  of  the  law  that  real 
estate  titles  should  become  matters  of  certainty  as  far  as  pos- 
sible, and  as  quitclaim  deeds  occur  in  the  lives  of  many 
titles,  a  different  rule  than  the  one  above  set  forth  would  tend 
to  unsettle  titles,  hinder  and  dela}'  improvements  and  impair 
the  selling  value  of  all  such  property. 

§  9.  Abstract  of  Quitclaim  Deeds.  As  in  the  case  of 
simple  warrant}'-  deeds,  only  the  main  features  of  quitclaim 
deeds  need  be  shown  in  preparing  a  synopsis  of  same.     The 

iStoffel  V.  Schropcler,  62  Mo.  147;  265. 

Carter  v.  Wise,  39  Tex.  273;  Springer  *  Botsforcl  v.  Wilson,  75  111.  132; 

r.  Brattle,  46  Iowa,  688.  Thorp  v.  Coal  Co.,  48  N.  Y.  253. 

2  Mann  v.  Best,  62  Mo.  491.  6  Winkler  v.  Miller,  54  Iowa,  476. 

*  Ballou  V.   Lucas,    14    Reporter, 


CONVEYANCE    BY   INDIVIDUALS.  107 

operative  granting  words  of  deeds  of  this  nature  are  "  remise, 
release,  convey  and  quitclaiin  ";  but  anv  other  words  indicat- 
ing conveyance  will  do  as  well  and  have  the  same  efl'ect.  In  the 
abstract  it  is  not  customary  to  recite  these  words,  but  the  de- 
scription is  headed  by  the  simple  word  "convey,"  the  exam- 
iner indicating  the  nature  and  legal  import  of  the  instrument 
by  the  name.  Should  the  deed  contain  the  statutory  words 
which  raise  covenants,  they  then  become  material,  for  the  in- 
strument in  effect  becomes  a  warranty  deed,  though  in  form 
a  quitclaim.'  To  raise  a  statutory  covenant  the  very  words 
of  the  statute  must  be  used,''  and  if  only  a  part  of  them  ap- 
pear, as  "grant,  sell  and  convey,"  the  deed  will  remain  a  quit- 
claim.^ It  is  the  custom  of  conveyancers  to  insert  after  the 
words  of  grant,  a  recital  of  the  estate  or  interest  conveyed;  as 
all  "right,  title,  interest,"  etc.,  but  this  is  the  legal,  as  well 
as  the  statutory  effect  of  the  deed,  and  their  omission  or  in- 
sertion is  immaterial  to  the  deed  and  consequently  of  no  im- 
portance to  the  abstract,  except  when  they  clearly  indicate  a 
prior  conveyance,  or  afford  constructive  or  actual  notice  of 
existing  equities.  Where  the  deed  contains  covenants  of  any 
kind,  particularly  of  warranty,  these  words  become  material, 
however,  and  in  some  States  they  are  of  controlling  efficacy,* 
as  per  the  succeeding  paragraph. 

§  10.  Effect  of  Covenants  in  Quitclaim  Deeds.  Inas- 
much as  the  particular  granting  words  employed  in  deeds  are 
now  of  comparatively  little  moment,  if  one  conve^'S  land  with 
a  general  covenant  of  warranty  against  all  lawful  claims  and 
demands,  he  can  not  be  allowed  to  set  up  against  his  grantee, 
or  those  claiming  under  him,  an}'-  title  subsequently  acquired, 
either  by  purchase  or  otherwise,  and  such  new  title  will  inure 
by  way  of  estoppel  to  the  use  und  benefit  of  his  grantee,  his 
heirs  and  assigns.^  But  where  the  deed  does  not  on  its  face 
purport  to  convey  an  indefeasible  estate,  but  only  "  the  right, 
title  and  interest"  of  the  grantor,   though  containing  cov- 

1  DeWolf  V.  Haydn,  24  Til.  52o.  Young  v.  Clippingor,  14  Kan.  U^*. 

2  Vipond  V.  Hurlbut,  22  111.  226.  *  See  Holbrook  v.  Debo,  99  III.  372. 

3  Whitehall  v.  Gottwal,  8  Penn.  »  Coiugto^k  y.  Smith,  13  Pick.  119. 
323;    Frink  v.   Darst,    14  111.  304; 


lOS  AIJSTRACTS    OK    TITLE. 

cnaiits  of  ownership,  warranty,  etc.,  it  will,  it  seems,  only 
convey  such  interest  in  the  land  as  tlie  grantor  has  at  the 
date  of  the  deed,  and  the  covenants  are  to  be  regarded  as  hav- 
ing reference  to  and  as  being-  qualitied  and  limited  by  the 
grant.'  In  a  like  case,  where  the  grantor  agrees  to  warrant 
the  title  conveyed,  only  as  against  all  claims  derived  fi-om 
liimself,  lie  is  understood  to  refer  to  existing  claims  and  in- 
cuinl)rances,  and  not  to  any  title  he  might  afterward  derive 
from  a  stranger.'^  As  quitclaim  deeds  are  ordinarily  drawn, 
after  the  words  of  grant  are  a  number  of  words  limiting  or 
defining  the  estate  conveyed;  as  "all  right,  title,  interest, 
claim,  demand,"  etc.,  which  in  what  are  usually  termed 
"straight"  deeds  may  be  disregarded;  but  when  followed  by 
covenants,  it  is  advisable  that  every  part  of  the  instrument 
which  tends  to  show  the  nature  and  extent  of  the  granted  es- 
tate be  set  out,  including  all  the  operative  parts  of  the  prem- 
ises and  the  habendum.  A  distinction  has  been  made  by 
the  courts  between  such  deeds  as  quitclaim  or  release  the  land 
itself  and  such  as  merely  release  whatever  interest  the  grantor 
may  have  in  the  land,^  and  though  the  distinction  does  not 
always  seem  to  rest  in  sound  reason,  yet  where  such  doctrine 
obtains,  no  other  safe  course  is  open  to  the  examiner  than  that 
above  indicated,  and  it  is  immaterial  whether  the  deed  be 
one  of  quitclaim  or  non-claim.* 

§  11.  Special  "Warranties.  There  is  in  common  use  in 
the  United  States,  though  it  would  seem  to  be  rarely  em- 
ployed in  England,  a  deed  of  conveyance,  with  a  limited  war- 
ranty, variously  known  as  a  "  special  warranty  "  or  deed  of 
'•non-claim."  In  its  original  form  the  non-claim  was  in- 
serted immediately  after  the  habendum,  without  the  usual 
words  of  covenant  being  prefixed,  and  purported  to  be  a  de- 
nial of  any  further  rights  in  the  grantor  in  relation  to  the 
property  conveyed,  and  from  which  he  was  "  utterly  debarred 

>  Bell  V.  Twilight,  6  Foster  (N.  H.),  99  111.  372. 

411;  Kawle  Gov.  for  Tit.  420.  ^See  Holbrook  v.   Debo,    99   111. 

2  Bogy  r.  Shoab,  13  Mo.  378;  Gee  372;  Blanchard  y.  Brooks,    12  Pick. 

r.  Moore,  14  Cal.  474;  Allen  v.  Hoi-  46. 

ton,  'JO  Pick.  458;  Holbrook  v.  Debo,  *  Gibbs  r.  Thayer,  6  Gush.  32. 


CONVEYANCE    BY    INDIVIDUALS.  199 

and  forever  excluded"  by  virtue  of  tlie  instrument.^  The 
covenant  might  be  general,  but  was  usually  limited  to  the 
grantor  and  those  claiming  under  him.  As  now  framed  it 
is  a  limited  personal  covenant,  not  as  against  paramount 
title,  but  only  so  far  as  concerns  the  acts  of  the  grantor.  It  is 
a  covenant  of  warranty  to  the  extent  of  its  import,  and  differs 
from  a  general  warranty  only,  in  that  one  is  a  warrantv 
against  any  and  all  paramount  titles,  while  the  other  is 
against  the  grantor  himself,  and  all  persons  claiming  hv, 
through  or  under  him.'*  "  As  a  general  rule,"  says  Rawle,^ 
"no  distinction  has  in  any  way  been  taken  between  such  a 
covenant,  and  the  ordinary  covenant  of  warranty.  Both  are, 
in  general,  held  to  have  the  same  operation  by  way  of  estop- 
pel; both  equally  possess  the  capacity  of  running  with  the 
land,  and  confer  the  same  rights  as  to  a  recovery  in  dam- 
ages." *  The  deed  is  shown  in  the  abstract  the  same  as  a  war- 
ranty, except  that  it  is  rated  as  a  "  special  warranty."  Give 
the  operative  words  of  grant,  if  material;  i.  e.,  if  imply! no- 
covenants,  and  notice  express  covenants  as  follows: 

Grantor  covenants  against  his  own  acts,  and  those  claim- 
ing hy,  through  or  under  him  only. 

The  legal  effect  of  the  deed  as  a  convej'ance  is  of  course  equal 
to  a  deed  of  bargain  and  sale*  or  other  form.  Its  defects  as  a 
conveyance  must  be  noted,  as  in  other  cases,  and  the  remarks 
and  suggestions  as  to  deeds  generally  will  apply  to  these  and 
all  other  classes,  but  are  not  alluded  to,  when  speaking  of 
each  particular  kind,  to  avoid  prolixity, 

1  See  Rawle  on  Cov.  for  Title,  p.  nett  r.  Waller,  23  111.  97;  Holbrook 
223,  3d  ed.  v.  Debo,  99  111.  372. 

2  Holbrook  v.  Debo,  99  111.  372;  *  This  species  of  conveyance  \s  a 
Porter  v.  Sullivan,  7  Gray,  441;  deed  of  "  bargain  and  sale  "  with 
Lathrop  ».  Snell,  llCush.453.  limited  warranty,  and  usually  takes 

*  Rawie  on  Cov.  for  Title,  p.  223.  that  form,  but  in  common  parlance 
3d  ed.  the  name  has  been  appropriated  to 

*  The  followincr  cases  sustain  the  "  warranty"  deeds,  and  to  avoid  con- 
text: Kimball  v.  Blaisdell,   5  N.  H.  fusion    the    same   si<?nificatioa    has 
533;  Gibbs  r.  Thayer,  6  Cush.   33;  been  retained  in  this  work. 
Claunch  v.  Allen,  12  Ala.  1&3;  Ben- 


200  ABSTKACTS   OF   TITLE. 

§  12.  Statutory  Forms.  Wliilc  the  tendency  of  coui'ts  and 
conveyancers,  has  been  to  modify  and  reduce  the  common  law 
forms  of  expression  in  conveyances  of  land,  the  radical  hand 
of  the  legislator  has  been  felt  of  late  years,  in  the  sweeping 
changes  made  in  many  of  the  States,  in  regard  to  the  form, 
contents  and  effect,  of  deeds  and  kindred  instruments.  Stat- 
utory forms  are  prescribed,  as  short  and  curt  as  those  they  are 
intended  to  supplant  were  often  long  and  verbose.  The  wis- 
dom of  these  forms  has  often  been  doubted,  while  their  pover- 
ty of  language  has  not  endeared  them  to  the  conveyancer,  and 
as  the  statute  has  left  their  use  optional  they  have  not  as  yet 
come  into  very  general  use.  The  operative  words  of  statutory 
deeds  purporting  to  convey  the  fee,  are  "convey  and  warrant," 
which  words  have  also  the  eflect  of  express  covenants  of  seizin, 
good  right  to  convey,  freedom  from  incuml>rances,  peaceable 
possession  and  warranty  of  title.  Deeds  made  in  conformity 
to  statute  hav^e  all  the  force  and  effect  of  covenants  that  are 
usually  contained  in  the  common  law  deeds.  All  the  covenants 
mantioned  in  the  statute  are  to  ba  regarded  and  treated  as 
though  they  were  incorporated  in  the  deed,  of  which  they  con- 
stitute a  part  as  effectually  as  if  they  were  written  therein.* 
The  operative  words  of  conveyances  of  naked  interests  are, 
"  Convey  and  quitclaim,"  and  these  words,  in  either  case,  should 
always  be  given  in  the  abstract,  which,  in  other  resjjects,  will 
not  differ  from  the  ordinary  forms  of  abridgments  already 
shown. 

§  13.  Common  Law  Conveyances.  In  addition  to  the 
deed  of  bargain  and  sale,  which  in  its  three-fold  form  of  "war- 
ranty," "quitclaim  "  and  "  non-claim  "  has  been  made  a  stat- 
utory conveyance  in  a  majority  of  the  States,  there  exists  a 
number  of  technical  conveyances  which  are  derived  from  the 
land  and  conveyancing  system  of  Great  Britain  and  are  pop- 
ularly known  as  common  law  deeds.  These  consist  primarily 
of  the  deeds  of  lielease.  Confirmation,  Surrender  and  Assign- 
ment.^    These  deeds  were  all  highly  technical,  long,  and  ver- 

'  Carver  r.  Louthain,  38  Tnd.  500;  ^The  elementaiy  writers  classify 

Kent  V.  Cantrall,  44  Ind.  452.  common  law  deeds  as  follows:    Five 


CONVEYANCES    BY    INDIVIDUALS.  201 

bose,  and  displaj^ed  to  fine  adv^antai^e  those  extremely  com- 
plex but  finely  rounded  sentences,  that  so  delighted  the  heart 
of  the  conveyancer  of  the  last  century  and  furnished  so  much 
food  for  disquisition  and  dis])utation  in  construing  estates  un- 
der the  complicated  English  land  tenures.  In  the  United 
States  they  have  lost  somewhat  of  their  redundancy,  though 
there  are  not  wanting  to-day  many  forms  needlessly  long  and 
uselessly  prolix,  and  tlie  difference  in  our  land  system  and 
estates  thereunder  has  robbed  them  of  much  of  their  original 
significance.  Tliere  now  exist  but  few  estates  that  can  not  be 
adequately  conveyed  by  deed  of  bargain  and  sale,  and  in  a  ma- 
jority of  instances  a  "quitclaim"  deed  will  accomplish  all 
that  was  forn\erly  sought  through  the  media  of  the  deeds 
above  enumerated. 

§  14.  Release.  The  term  "release,"  in  its  popular  and  lim- 
ited signification,  is  used  to  denote  the  instrument  wherebv  the 
interest  conveyed  by  a  mortgage  is  reconveyed  to  the  owner 
of  the  fee,  and  it  is  also  used  generally  to  designate  the  con- 
veyance of  a  right  to  a  person  in  possessioti.  In  England,  it 
obtains  in  a  four-fold  form,  and  is  one  of  the  most  imjiortant 
of  the  common  law  forms  of  conveyance.  In  the  United 
States,  the  technical  principles  relating  to  deeds  of  this  char- 
acter are  wholly,  or  in  a  great  measure  inapplicable,  wliile  the 
conveyance  which  corresponds  to  a  release  at  common  law, 
is  the  popular  quitclaim  deed,  the  operative  words  of  conv^ej'- 
ance  being  the  same  in  both  deeds.  Where  a  deed  remising 
and  releasing  premises,  contains  a  covenant  of  warranty  of 
title,  either  general,  or  simply  as  against  the  claims  of  all  per- 
sons claiming  under  the  grantor  only,  and  particularly  if  the 
habendum  be  to  the  grantee,  his  heirs,  etc.,  it  will  not  be  a 
simple  release,  but  a  conveyance  of  the  fee,  and  a  title  subse- 
quently acquired  by  the  grantor  will  inure  to  the  grantee,  un- 
original conveyances,  to  wit:  Feoff-  Covenant  to  stand  seized  to  uses, 
meiit,  Gift,  Rent,  Lease,  Exchange,  Bargain  and  sale,  Lease  and  Release, 
and  Pai'tition;  five  derivative  convey-  Deed  to  lead  or  declare  the  uses  of 
ances,  to  wit:  Release,  Confirmation,  other  more  direct  conveyances,  and 
Surrender,  Assignment  and  Defea-  Deeds  of  revocation  of  uses:  Wil- 
sance;  and  five  conveyances  derived  lard  Conveyancing,  419 j  3  Wash. 
from  the   statute   of  uses,    to   wit:       Real  Prop.  chap.  5. 


202  AUSTRACTS    OF    TITLE. 

less  it  is  (lorlveJ  from  sale  under  an  incumbrance  assumed  bj 
the  grantee/ 

§15.  Confirmation.  The  subject  of  Confirmation  lias  been 
several  times  alluded  to  in  the  course  of  this  work,  but  mainly 
in  treating  of  confirmations  by  the  government  of  previously 
existing  but  inchoate  rights  to  what  would  otherwise  be  public 
land.  Deeds  of  confirmation  are  also  in  use  among  individ- 
uals, and  is  that  species  of  conveyance  whereby  an  existing 
rii2;ht  or  voidable  estate  is  made  sure  and  unavoidable,  or  where 
a  pai'ticular  interest  is  increased.  Tie  appropriate  technical 
words  of  confirmation  are  "ratify,  approve  and  confirm,"  but 
"grant  and  convey"  or  similar  terms  will  have  the  same  ef- 
fect. Deeds  of  confirmation  are  not  in  general  use,  as  a  "  quit- 
claim" is  eff'ective  for  almost  every  purpose  which  might  be 
accomplished  by  the  former.  Frequently,  however,  recitals  in 
deeds  show  them  to  be  given  in  ratification  or  confirmation 
of  previous  acts  and  to  correct  errors,  irregularities  or  infirm- 
ities in  former  deeds,  in  which  event  they  take  effect  by  relation 
as  of  the  date  of  the  former  act  or  deed,  and  the  confirmatory 
words  become  material  to  interpret  and  explain  the  undisclosed 
intention  or  correct  the  irregularity  of  the  former  deed. 

§  16.  Surrender.  A  surrender  is  defined  as  the  yielding 
up  of  an  estate  for  life  or  years  to  him  who  has  an  immediate 
estate  in  reversion  or  remainder,  the  lesser  estate  being 
merged  in  the  greater  by  mutual  agreement,^  and  the  term  is 
applied  both  to  the  act  and  the  instrument  by  which  it  is  ac- 
complished. It  is  directly  opposite  in  its  nature  to  a  release, 
which  technicallj^  operates  by  the  greater  estate  descending 
upon  the  lesser.  The  operative  words  of  a  conveyance  of 
this  nature,  are  "  surrender  and  yield  up,"  but  any  form  of 
words  that  indicate  the  intention  of  the  parties  will  serve  the 
same  purpose,  while  a  surrender  is  always  implied  when  an 
estate  incompatible  with  the  existing  estate  is  accepted. 
Though  the  books  on  conveyancing  still  continue  to  give  am- 
ple forms  for  deeds  of  surrender,  the  quitclaim  deed  in  common 
use  has  taken  its  place  for  most  purposes,  but  it  would  seem 

1  People  ex  rel.  Weber  v.  Herbal,  ^2  Bou.    Law    Diet.    573;    Coke 

96  Hi.  384.  Litt.  337  b. 


CONVEYANCES    BY    INDIVIDUALS.  203 

tliat  this  is  still  the  proper  instrument  for  the  relinquish- 
ment of  leasehold  interests,  dower,  etc.  In  deeds  of  surren- 
der the  special  matter  of  inducement  usually  precedes  the  oper- 
ative part  of  the  deed;  as  in  case  of  leasehold,  a  recital  of 
the  lease,  etc.,  and  an  abridgment  of  this  matter  should  appear 
in  the  abstract.  This,  and  the  surrender  clause,  constitute 
the  essential  distinctive  features.  An  example  is  given  of  a 
surrender  of  a  life  estate: 

William  E.  Charming  "|      Surrender, 

to  I      Dated,  etc., 

Thomas  L.  Channing,  i      *         *         *         ^         -s 

only  son  and  heir  aj)parent  of  \  liecites  that  [here  set  out 
said  William  E.  Clianning.  j  briefly  the  matter  of  in- 
ducement, which  would  he, 
in  this  case,  the  instrument  conveying  the  life  estate  of  the 
father  and  the  remainder  to  the  son,  and  continueP[  Now 
this  Indenture  witnesseth  (it  is  stated)  that  said  first  j^ctrty  in 
consideration  of  $1.00  grants,  surrenders  and  yields  up  to 
second  party  all  those  certain  prem^ises  [describing  same]  and 
the  estate  for  life,  or  life  interest  of  said  first  party,  in  and  to 
said  premises,  mentioned  to  he  hereby  granted  and  surrendered, 
to  the  intent  that  same  may  merge  and  become  ahsolutely  ex- 
tinguished, so  that  said  second  party  may  be  in  the  actual 
possession  of  said  premises. 

\^Note  covenants  if  any.] 

Acknoioledgment. 

A  better  idea  of  the  abridgments  of  deeds,  and  other  instru- 
ments presented  in  this  work,  would  be  obtained  if  it  were 
practicable  to  insert  the  original  instruments  in  connection 
therewith.  As  it  is,  the  reader  is  requested  to  compare  same 
with  the  forms  presented  in  any  form  book  and  to  note  where 
language  can  be  eliminated  without  impairing  the  force  of  the 
instrument,  and  where  slight  substitutions  and  abbreviations 
can  be  advantageously  employed.  A  deed,  of  the  character 
just  considered  is,  when  drawn  after  the  regulation  pattern, 
very  long  and  technical.  Condensation  in  such  cases  is  an 
imperative  necessity,  while  the  spirit  of  the  original  must 
be  preserved. 


204  ABSTKACTS   OF    TITLE. 

§  17.  Assignment.  All  assignment  is  a  mode  of  convey- 
ance applicable  to  any  estate  in  lands  whatever;  bnt  the  term  is 
usually  employed  to  express  the  transfer  of  an  equitable  estate 
or  a  leasehold^  interest,  and  as  such  will  receive  attention  in 
another  part  of  the  work.  The  operative  words  of  conveyance 
are  "  assii^n,  transfer  and  set  over,"  but  any  other  words  evinc- 
in<^  an  intention  to  make  an  entire  transfer  are  sufficient.^ 

§  18.  Conveyances  in  futuro.  At  common  law  an  at- 
tempt to  create  or  convey  a  freehold  or  estate  of  inhei'itance 
in  futuro  was  a  nullit}^,  the  nearest  approach  being  a  cove- 
nant to  stand  seized  to  uses,  and  this  was  onlj'  permissible 
when  the  consideration  was  blood  or  marriage,^  nor  was  it 
until  very  recently  that  such  conveyances  have  been  recog- 
nized in  the  United  States,  unless  such  estate  jiad  first  been 
filtered  through  the  medium  of  a  trustee.  As  it  is,  sucli  con- 
veyances are  rare,  and  possibly  in  many  States  of  doubtful 
efficacy.  Usually  they  will  be  found  to  take  the  form  of  a 
common  deed  of  bargain  and  sale  with  a  proviso,  restraining 
the  grantee  from  using  or  occupying  the  granted  premises 
during  the  life  or  lives  of  the  grantor,*  or  defining  the  time  at 
which  the  deed  shall  become  efiective,  though  in  this  respect 
they  are  variant,  occasionally  partaking  of  the  nature  of  a 
contingent  remainder.  In  the  abstract  there  should  be  shown: 
the  words  of  grant,  and  if  material  the  words  of  limitation, 
as  tending  to  indicate  more  fully  the  nature  of  the  granted 
estate;  the  proviso  limiting  or  restricting  the  use  of  the  estate 
or  explaining  its  scope;  the  habendum,  with  only  slight 
abridgment,  this  being  one  of  the  few  cases  in  which  it  be- 
comes material  and  important;  and  the  covenants,  or  such  of 
them  as  may  appear  material.  A  deed  of  this  character, 
taken  from  the  files,  will  serve  more  fully  to  illustrate  the 
matter,  A  grantor  seeks  to  convey  the  fee,  to  vest  only  in  the 
event  of  his  death  before   that  of  the  grantee,  as  extreme  a 

1 2  Hill.  Abvidff.  317.  *  See  Chandler  v.  Chandler,  55  Cal. 

2  2    Hill.  Abridg.   318;    4  Cruise  267;    Abbott  ij.  Hoi  way,    Adm'r,  12 
Dig:.  81.  Reporter,  619;  Shackleton  v.  Sebree, 

3  2  Black.  Com.   338;   Jackson  v.  86  111.  616;   Kent  v.   Atlantic,    De 
McKenny,  3  Wend.  233.  Laine  Co.,  8  R.  I.  305. 


CONVEYANCES    BY    INDIVIDUALS.  205 

case  as  can  be  well  imagined.  Omitting  the  preliminary 
parts,  which  would  be  in  the  usual  form  already  shown,  ex- 
cept that  the  consideration,  and  conveying  clauses  are  set 
forth  more  fully,  the  abstract  after  the  description  would  read: 

Provided  {it  is  stated)  "  that  this  deed  is  not  to  take  effect 
and  operate  as  a  conveyance  until  my  decease^  and  in  case 
I  shall  survive  m.y  said  wife^  this  deed  is  not  to  he  operative 
as  a  conveyance^  it  heing  the  sole  purpose  and  object  of  this 
deed  to  mahe  a  provision  for  the  support  of  my  said  wife  if 
she  shall  survive  me,  and  if  she  shall  survive  me,  then  and 
in  that  event  only,  this  deed  shall  he  operative  to  convey  to 
my  said  wife  said  premises  in  fee  simple.  I^ either  I,  the 
grantor,  nor  Clarissa,  B.  Ahhott,  shall  convey  the  above 
prem.ises  while  we  hath  live,  without  our  mutual  consent. 
If  I,  the  grantor,  shall  ahandon  or  desert  my  said  wife,  then 
she  shall  have  the  sole  use  and  income  and  control  of  said 
premises  during  herlifey 

To  have  and  to  hold-,  etc.,  "  to  the  said  Clarissa  B.,  if  she 
shall  survive  me,  her  heirs  and  assigns,  to  their  tise  and 
hehoof forever. " 

Said  grantor  covenants  "  that  I  have  good  right  to  sell  and 
convey  the  same  to  the  said  Clarissa  B.,  if  she  shall  survive 
me,  to  hold  as  aforesaid  at  my  decease^''  and  that  he,  his 
heirs,  etc.,  vjill  warrant  and  defend  the  same  "  to  said  Clar- 
issa B.  if  she  shall  survive  me.'''' 

Under  the  statutes  now  in  force  in  a  majority  of  the  States, 
the  owner  of  real  estate  may  convey  in  the  manner  prescribed, 
any  part  or  portion  of  his  estate  as  he  and  his  grantee  may 
agree,  subject  only  to  those  restrictions  which  the  law  imposes 
as  required  by  public  policy,  but  relieved  from  tlie  technical 
doctrines  which  arose  out  of  ancient  feudal  tenures,  and  all  tlic 
restrictive  effect  which  they  had  upon  alienations.  "Tiie 
mere  technicalities  of  ancient  law,"  says  Brarrows,  J.,  "  are 
dispensed  with  upon  compliance  with  statute  requirements. 
The  acknowledgment  and  recording  are  accepted  in  place  of 
livery  of  seizin,  and  it  is  com[)etent  to  fix  such  time  in  tlie 
future   as  the  parties  may  agree  upon  as  the    time  when  the 


206  ABSTRACTS    OF    TITLE. 

estate  of  the  grantee  shall  commence,  ^o  more  necessity 
for  limiting  one  estate  upon  another,  or  for  having  an  estate, 
of  some  sort,  pass  immediately  to  the  grantee  in  opposition 
to  the  expressed  intention  of  the  parties.  The  feoffment  is  to 
be  regarded  as  taking  place,  aftd  the  livery  of  seizin  as  occur- 
ring, at  the  time  fixed  in  the  instrument,  and  the  acknowledg- 
ment and  recording  are  to  be  considered  as  giving  the  neces- 
sary publicity  which  was  souglit  in  the  ancient  ceremony."* 
§  19.  Conveyances  of  Special  Interests  and  Qualified  Es- 
tates. The  terms  "warranty"  and  "quitclaim"  are  used  in 
preparing  the  synopsis  of  deeds,  only  when  the  instruments 
to  which  they  are  applied  purport  to  be  absolute  conveyances 
of  the  entire  interest  of  the  grantor.  In  the  former,  when 
containing  the  covenants  which  run  witli  the  land;  in  the  lat 
ter,  when  conveying  but  a  naked  interest,  uncoupled  with  cov- 
enants or  conditions.  In  both  of  these  cases  the  legal  import 
may  safely  be  determined  by  the  examiner,  who  indicates 
same  by  the  name  he  applies  to  the  conveyance;  in  all  other 
cases  he  simply  uses  the  generic  word,  "  deed,"  and  setting  out 
the  material  and  operative  parts  leaves  the  question  of  their 
legal  import  and  effect  to  counsel.  This  class  of  conveyances 
comprises  deeds  of  equitable  interests,  contingent  and  vested 
remainders,  reversions,  and  all  conveyances  not  m  jpresenti^ 
and  may  include  estates  for  life  or  years,  as  well  as  incorporeal 
hereditaments,^  easements  and  the  like.  Greater  particular- 
ity is  required  in  their  treatment  than  in  the  other  classes  men- 
tioned, as  their  validity  and  eflfect  do  not  depend  so  much  on 
general  principles,  as  in  case  of  warranties,  as  upon  the  applica- 
tion of  special  provisions  to  particular  facts.  The  operative 
words  of  conveyance,  and  frequently  those  of  purchase  or  lim- 
itation, become  material  in  determining  the  nature  and  extent 

*  Abbott    V.   Hoi  way  Adm'r,    12  as   of  fee  of  a  corporeal    heredita- 

Reporter,  619;  Kent  V.  Atlantic,  De-  ment,  while  of  an  incorporeal  here- 

Laine  Co.,  8  R.  I.  305.  ditament  he  can  only  be  said  to  be 

^  A  grantee  may  take  a  fee  in  any  seized  as  of  fee,  and  not  in  his  de- 

kind  of   hereditament,  either  corpo-  mesne,  which  means  property  in  the 

real  or  incorporeal;  but  there  is  this  thing  itself:     Wiggins  Ferry  Co.  p. 

distinction  between  the  two  species:  0.  &  M.  Railway  Co.,  94111.  83. 
that  a  man  is  seized  in  his  demesne 


COKVEYAXCES    BY    INDIVIDUALS.  207 

of  the  estate  granted,  wliile  the  liabendum,  or  some  portion 
thereof,  must  also  be  resorted  to  to  exphiin  or  further  define 
the  grant  made  in  the  premises.  The  conditions  of  the  grant 
or  restraints  upon  its  use  or  enjoyment  must  further  be  ob- 
served, and  where  covenants  are  inserted,  a  general  synopsis 
of  same,  or  if  creating  a  repugnancy,  a  rather  full  transcrip- 
tion. It  is  a  generally  recognized  principle,  that  where  the 
granting  clause  does  not  define  the  nature  of  the  estate  con- 
veyed, and  is  not  followed  by  language  assuming  to  supply  what 
is  thus  omitted,  the  estate  conveyed  is  a  fee,  or  whatever  title  the 
grantor  possessed  at  the  time,  and  this  is  the  general  statutory 
doctrine;  but  where  the  habendum  describes  what  estate  passes 
it  becomes  efficient  to  declare  the  intention,  and  will  rebut  any 
implication  which  would  otherwise  arise  from  the  omissions  of 
the  premises.  The  habendum  in  such  case  does  not  contravene 
the  rule  that  nothing  can  be  limited  thereby,  nor  does  it  con- 
tradict the  language  of  the  granting  clause,  but  simply  sup- 
plies what  is  there  omitted,  and  removes  all  necessity  for  re- 
sorting to  implication  to  ascertain  the  intention  of  the  parties.^ 
Neither  can  the  covenants  enlarge  the  grant,  whatever  be 
their  tenor,^  yet  they,  like  the  habendum,  may  serve  to  more 
fully  explain  the  intention  of  the  parties,  as  will  be  seen  from 
some  of  the  examples  given  in  this  chapter,  and  courts  are 
ever  more  inclined  to  look  to  the  whole  instrument  for  a 
proper  construction,  than  to  isolated  and  detached  portions  as 
formerly.* 

§20.  The  Same — Continued.  It  is  impossible  to  give  more 
than  a  reference  to  the  large  class  of  conveyances  that  come 
within  tiie  scope  of  this  section,  but  it  is  believed  that  the  ex- 
aminer will  readily  recognize  such  when  met  with  in  actual 
practice.  A  common  occurrence  in  deeds  and  wills  will  be 
found  in  the  eff'orts  to  secure  to  married  women  and  their 
children  the  use  and  ownership  of  land  freed  from  the  domin- 
ion and  control  of  the  husband  and  father,  and  such  convey- 
ances give  rise  to  many  subtile  questions  in  their  construction. 

^  Biggin  V.  Love,  72  111.  553.  ^  Saunders   v.    Hanos,    44    N.  Y. 

^  Lamb  v.  Wakefield,  1  Sawyer,  353;  Callins  v.  Laveile,  44  Vt.  230. 
251. 


208  ABSTRACTS   OF   TITLE. 

A  conveyance  of  land  directly  to  a  woman  and  lier  cliildren, 
without  other  words,  she  then  having  cliildren,  would  vest  the 
title  in  her  and  her  children  equally,^  and  it  seems  no  title 
will  vest  at  law  in  children  thereafter  born,  although  the  in- 
strument may  declare  the  grantor's  intent  that  the  after-born 
children  shall  take.^  But  such  children  would  take  as  bene- 
ficiaries under  a  trust  by  deed,^  or  will,*  and  perhaps  the  liv- 
ing grantees  under  such  a  deed  expressly  providing  for  after- 
born  children  would  hold  the  legal  title  interest  for  themselves 
and  such  children/  A  very  slight  indication  of  an  intention 
that  the  children  shall  not  take  jointly  with  the  mother  will 
suffice  to  give  the  estate  to  the  mother  for  life,  with  remainder 
to  her  children,  as  well  in  the  case  of  a  deed®  as  of  a  will.'' 
If  the  conveyance  be  expressly  to  the  mother  for  life,  and  after 
her  death  to  her  children,  the  children  born  during  the  life 
estate  would  take,  the  remainder  vesting  as  they  came  into  be- 
ing, and  opening  to  let  in  those  born  afterward.*  In  all  these 
cases,  aside  from  the  fine  points  of  construction  to  decide  the 
ownership  of  the  fee,  collateral  questions  arising  from  the  doc- 
trine of  dower  and  curtesy  present  themselves  according  as 
the  statutory  law  of  the  State  maj^be;  the  collateral  questions 
being  dependent  on  the  construction  of  the  main  question  of 
the  nature  and  quality  of  the  estate  conveyed.  The  intention 
of  the  grantor  being  gathered  from  the  instrument,  it  is  rec- 
ommended that  all  the  technical  words  of  conveyance,  limita- 
tion and  definition,  whether  in  premises,  habendum  or  cove- 
nants, be  set  out  fully  and  without  reserve,  and  repugnancies  or 
variations  noted  as  heretofore  shown.  In  the  instances  above 
cited,  and  generallj'"  when  the  instrument  purports  to  convey 
more  than  one  estate,  or  where  the  estate  conveyed  is  defeasi- 

J  Hickman  u.Qmnn,  6  Tero-.(Temi.)  222. 

96;    Loyless  v.   Blackshear,  43  Ga.  ^  Holmes  v.  Jarret  Moon,  7  Heisk. 

327.  (Tenn.)  506;    Jackson  v.   Sisson,  2 

^Lillardv.  Ruckers,9  Yerg'.(Tenn.)  Johns.  Cas.  321;    Schumpert  v.  Dil- 

64;  Newsom  v.  Thompson,  2  Irecl.  lard,  55  Miss.  438. 

(N.  C.)  277.  6  Moore  v.  Simmons,  2  Head,  506. 

^Gray  t;.  Hayes,  7  Himiph.  (Tenn.)  "'  Bunch  v-  Hardy,  3  Lea.  543. 

588.  ^Beecher  v.  Hicks,    12  Reporter, 

*  Turner  v.  Ivie,  5  Heisk.  (Tenn.)  123. 


CONYEYANCES   BY    INDIVIDUALS.  209 

ble  from  any  cause,  tlie  premises  and  habendum  must  be  con- 
strued together  and  should  be  properly  presented  for  that  pur- 
pose; as,  in  a  case  where  land  is  conveyed  to  A,  to  iiold  until 
his  son  B  shall  become  of  age,  and  then  to  B  in  fee;  or  if  B 
shall  die  before  that  event,  then  to  A  in  fee.  In  such  a  case 
the  premises  and  habendum  and  all  operative  words  become 
material  and  must  be  shown,  thus: 

Grants,  hanjains,  sells  and  conveys  to  A,  and  his  son  B, 
the  following  described  land,  etc.: 

To  have  and  to  hold  *  *  *  imto  said  A,  for  and  dur- 
ing the  ininority  of  his  son  B,  and  until  said  B  shall  arrive 
at  the  age  of  twenty-one  years;  and  unto  said  B,  his  heirs,  etc., 
^  *  ^  in  case  he  shall  arrive  at  the  full  age  of  twenty- 
one  years;  hut  in  case  the  said  B  shall  decease  hefore  he  ar- 
rives at  the  age  of  twenty- one  years,  then  unto  said  A,  his 
heirs,  etc. 

{Note  covenants  if  material.) 

§  21.      Restrictive     and     Conditional     Conveyances.      The 

subject  of  restrictive  clauses  and  conditions  in  deeds  and 
other  conveyances  has  already  been  alluded  to,  and  need  not 
be  extensively  discussed  here.  As  a  rule,  any  condition 
which  is  repugnant  to  the  estate  granted  will  be  invalid,  but 
it  has  been  held  that  the  owner  of  property  has  a  right  to 
dispose  of  it  with  a  limited  restriction  on  its  use,  however 
much  the  restriction  ma}^  affect  the  value  or  the  nature  of  the 
estate.  Repugnant  conditions  are  those  which  tend  to  the 
utter  subversion  of  the  estate;  such  as  prohibit  entirely  the 
alienation  or  use  of  the  property.  Conditions  which  prohibit 
its  alienation  to  particular  persons,  or  for  a  limited  period,  or 
its  subjection  to  particular  uses,  are  not  subversive  of  the 
estate.  They  do  not  destroy  or  limit  its  alienable  or  inherit- 
able character,  and  the  reports  are  full  of  cases  where  condi- 
tions imposing  restrictions  upon  uses  to  which  property  con- 
veyed in  fee  may  be  subjected,  have  been  upheld.  In  this 
way  slaughter  houses,  soap  factories,  saloons,  distilleries, 
livery  stables,  tanneries,  and  machine  shoj)S  have,  in  a  multi- 
tude of  instances,  been  excluded  from  particular  localities, 
14 


210  ABSTRACTS    OF   TITLE. 

whicli,  thus  freed  from  unpleasant  siglits,  noxious  vapors,  or 
disturbing  noises,  have  become  desirable  as  places  for  resi- 
dences of  families.'  In  abstracting  deeds  of  this  character, 
the  attention  of  the  examiner  should  be  particularly  directed 
to  the  words  of  grant,  the  habendum,  the  conditions  annexed 
to  the  grant,  and  the  covenants.  Conditions  restricting  the 
use  of  the  premises  conveyed  are  usually  conditions  subse- 
quent, and  provide  for  a  reversion  of  the  title  upon  their 
breach,  and  upon  which  the  grantor  may  recover  in  eject- 
ment.^ The  form  for  creating  a  condition  in  a  grant  or  deed, 
as  laid  down  by  all  writers  on  the  subject,  is  "  provided  al- 
ways, and  this  deed  is  upon  the  express  condition,"  ^  and  these 
expressions  have  always  been  held  sufficient  to  create  an 
estate  upon  condition,  unless  there  is  something  in  the  deed 
to  negative  this  idea.  Inasmuch  as  estates  upon  condition 
working  forfeiture  are  odious,*  tlie  courts  have  generally  laid 
hold  of  any  plausible  feature  to  sustain  them.  Such  condi- 
tions are  not  favored,  and  must  be  construed  strictly,^  and 
will,  under  no  circumstances,  be  enforced  further  than  may 
be  absolutely  required,  and  so  strong  is  the  principle  engrafted 
in  the  law  that  courts  of  equity  will  seldom  lend  their  aid  to 
divest  an  estate  for  breach  of  a  condition.®  The  fact  that  an 
estate  is  subject  to  condition  does  not  in  any  way  affect  its 
capacity  for  alienation,  or  of  being  devised,  or  descending  in 
the  same  manner  as  an  indefeasible  estate,  but  the  purchaser, 
devisee,  or  heir,  takes  it  subject  to  whatever  conditions  may 
be  annexed  to  it.'  The  estate  so  granted  is  frequently  called 
a  base  or  qualified  fee,  being  such  as  has  a  qualification  sub- 

^  Cowell  V.  Colorado  Springs  Co.,  ^  Gadbeny  v.  Sheppard,  27  Miss. 

100  U.   S.   55;  Plumb  v.  Tubbs,  41  203;   Bradstreet  v.   Clark,  21  Pick. 

N.  Y.  442;  Collins  v.  Marcy,  25  Conn.  389;  Hoyt  v.  Kimball,  49  N.  H.  327; 

242;   Speny  v.  Pound,  5  Ohio,  189;  4  Kent  Com.    130;   Woodworth  v. 

Gray  v.  Blanchard,  8  Pick.  284.  Payne,  74  N.  Y.  196. 

2  Plumb  V.  Tubbs,  41  N.  Y.  442.  ^  Warner  v.  Bennett,  31  Conn.  478; 

» 4  Kent's  Com.  122;  2  Wash.  Real  Ins.  Co.  p.  Walsh,  54  111.  164;  Palm- 
Prop.  3.  er  V.  Ford,  70  111.  369. 

*Warnerv.Bennett,  31Conn.  478;  'Taylor    v.    Sutton,  15  Ga.  103; 

Palmer  v.  Ford,  70  111.  369;  Craig  v.  Wilson  v.   Wilson,  38  Me.  18;  Un- 

Wells,  11  N.  Y.  315.  derhill  v.  R.  R.  Co.,  20  Barb.  455. 


CONVEYANCES    BY   INDIVIDUALS.  211 

joined  thereto,  and  which  must  be  determined  whenever  the 
qualification  annexed  to  it  is  at  an  end.  It  is  a  fee,  because 
it  may  possibly  endure  forev^er;  and  it  is  base  or  qualified, 
because  its  duration  depends  upon  collateral  circumstances 
which  qualify  and  debase  the  purity  of  the  donation.^ 

§  22.  Prohibited  Conveyances — Adverse  Seizin.  "From 
an  early  date,"  says  Washburn,  "  the  policy  of  the  law  has  not 
admitted  of  the  conveyance,  by  any  one,  uf  a  title  to  land 
which  is  in  the  adverse  seizin  and  possession  of  another.  This 
is  considered,  not  as  passing  a  title,  but  as  the  transfer  of  a 
right  of  action  in  violation  of  the  early  laws  against  champer- 
ty and  maintenance,  and,  therefore,  not  to  be  sustained  by  the 
courts."  ^  This  doctrine  was  long  maintained  in  this  country 
and  still  prevails  to  a  limited  extent  in  some  of  the  older 
States,^  but  hi  the  West  it  has  been  swej)t  away  by  express 
statutory  enactments,  and  no  conveyance  is  void  because  at  the 
time  of  its  execution  or  delivery,  the  land  in  question  is  in 
the  possession  of  another  who  holds  by  a  title  adverse  to  that 
of  the  grantor.*  Where  such  doctrine  still  ]irevails,  an  entry 
on  the  land  and  delivery  there,  will  evade  the  letter  of  the  law 
and  make  good  the  deed.^  The  abstract  will  show  both  titles, 
provided  they  are  each  deducible  of  record,  and  questions  of 
this  kind  must  be  decided  by  the  application  of  local  law  to 
the  admitted  or  known  circumstances.  At  most,  the  princi- 
ple will  apply  only  as  to  the  person  holding  the  adverse  title 
at  the  time  of  the  execution  and  delivery  of  the  deed,  or  those 
claiming  by,  through  or  under  him,  and  as  to  all  others  the 
deed  would  be  valid  and  efiectual.* 

1  Wiggins  Ferry  Co.   v.  0.  &  M.  actual  adverse  possession,  may  sell 

Ry.  Co.,  94  III.  83.  and  convey  the  same  as  though  in 

2,3  Wash.  Real  Prop.  329  (4th  ed.)  the  actual  possession,  and  his  deed 

^  Sohier  v.  Coffin,  101   Mass.   179;  will  give  the  grantee  the  same  right 

Jones  V.  Monroe,  32  Ga.  188.  of  recovery  in  ejectment  as  ii  Ihe 

*  Hall  V.  Ashby,  9  Ohio,  96  ;  Short-  grantor  had  been  in  the  actual  pos- 

all  r.  Hinkley,  31  111.  219;  Crane  v.  session  when  he  conveyed:     Chicago 

Reeder,  21  Mich.  82;  Stewart  v.  Mc-  v.  Vulcan  Iron  Works,  9:^  111.  222. 

Sweeny,  14  Wis.  471.     Under  these  ^  Farwell  v.  Rogers,  99  Mass.  36; 

statutes    any  one  claiming  title  to  Warner  v.  Bull,  13  Met.  4. 

land,  although  out  of  possession,  and  ^Edwaicls  v.    Rays,    18  Yt.  473; 

notwithstandmg  there  may  be   an  Wade  v.  Lindsey,  6  Met.  407;     Bet- 


212  ABSTRACTS    OF   TITLE. 

§  23.  Continued — Fraudulent  Conveyances.  What  are 
known  as  "  fraudulent  conveyances,"  or  sucli  as  are  made  with 
intent  to  hinder  and  delay  creditors,  though  formal  in  all  re- 
si)ects,  and  valid  and  effectual  between  the  parties,  are  prohib- 
ited by  law  and  void  to  a  certain  extent/  Depending  large- 
ly upon  intent,  the  record  furnishes  few  clues  to  its  real  char- 
acter, and  such  a  deed  will  usually  pass  unquestioned  when 
found  upon  the  abstract.  "Want  of  consideration  may  be  suf- 
ficient to  raise  an  inquiry,  yet,  as  has  been  seen,  this  of  itself 
does  not  denote  bad  faith,  nor  is  a  consideration  essential  to 
tlie  vesting  of  the  title,  and  where  the  controlling  motive  in 
making  tlie  deed  was  to  defeat  creditors,  a,  full  consideration  is 
usually  expressed.  The  invalidity  of  a  deed  is  usually  the  I'e- 
sult  of  a  decision  of  a  court,  and  wliatever  internal  evidence  it 
mav  possess  will  rarely  decide  its  character.  The  question  of 
fraudulent  intent,  as  a  rule,  is  confined  to  the  immediate  par- 
ties and  does  not  extend  to  the  second  grantee,  who,  if  acting 
in  good  faith  and  without  notice,  will  take  the  property,  and 
the  full  title,  purged  of  its  former  taint.^  Such  a  purchaser  is 
a  favorite  in  the  eyes  of  a  court  of  equity.'* 

§  24.  Conveyances  Subject  to  Incumbrance.  Wliereland 
is  conveyed  subject  to  a  mortgage,  a  promise  to  pay  the  debt 
tlrus  secured  can  not  be  inferred  from  the  acce]:)tance  of  the 
deed,*  even  though  made  a  part  of  the  consideration.^  In  the 
absence  of  other  evidence,  such  a  deed  shows  that  the  grantee 
merely  purchased  the  equity  of  redemption."  But  if  a  grantee 
takes  a  deed,  containing  a  stipulation  that  the  land  is  subject 
to  a  mortgage,  which  the  grantee  assumes  or  agrees  to  pay,  a 
duty  is  imposed  on  him  by  the  acceptance,  and  the  law  im- 

sey  V.  Torrance,  34  Miss.  138;  Far-  Kimball,  24  Pick.  238;  4  Kent  Com. 

nmii  V.  Peterson,  111  Mass.  151.  (lltli  Ed.)  464. 

iDyer  v.    Homer,   22    Pick.  258;  ^  j  Story  Eq.  Jur.  §  434. 

Dnnlap  v.  Dunlap,   10    Ohio,   162;  <Ins.    Co.  v.   Stewart,  86  Pa.  St. 

Harvey  •«.   Varney,    98  Mass.    118;  89. 

Horner  v.   Znnmerman,  45  111.  14;  ^Fiskei;.  Tolman,  124  Mass.  254. 

Stevens  v.  Harrow,  26  Iowa,  458.  Compare   Twichell  v.  Mears,  6    Re- 

-  Jackson  V.  Henry,  10  Johns.  185;  porter,   40. 

"Wright  V.  Howell,  35  Iowa,  292;     1  ''Strong  v.  Converse,  8  Allen,  557. 
Story  Eq.   Jur.  §  434;      George  v. 


CONVEYANCES    BY   INDIVIDUALS.  213 

plies  a  promise  to  perforin  it.^  The  examiner  sliouIJ  observe 
great  particularity,  therefore,  in  the  rendering  of  clauses  of 
conveyances  relating  to  subsisting  claims  or  incumbrances,  for 
the  purchaser  is  charged  with  notice  of  all  recitals  of  this 
character,  and  is  bound  thereby  even  though  such  incumbrance 
fails  to  appear  of  record.^  Though  the  conversance  of  prop- 
erty subject  to  mortgage,  unless  expressly  stated,  imposes  no 
personal  liability  on  the  grantee,  it  raises  the  presumption 
that  tlie  purchaser  buys  the  property  to  the  extent  stated,  and 
takes  his  chances  of  realizing  out  of  the  property  enough, 
over  and  above  the  mortgage,  to  indemnify  him  for  his  ad- 
vance of  purchase  money.  The  fair  inference  is  that  the  pur- 
chaser does  not  pay  the  vendor  the  full  value  of  the  prop- 
erty, but  that  the  amount  of  the  mortgage  debt  is  reserved  in 
his  hands  as  so  much  jnircliase  money  for  the  purpose  of  dis- 
charging the  lien.  In  such  case  the  land  convej'cd  is  as  effect- 
ually charged  with  the  amount  of  tlie  mortgage  as  if  the  pur- 
chaser had  expressly  assumed  its  payment.'^  As  between  tlie 
vendor  and  the  purchaser  of  the  equity  of  redem])tion,  the 
land  is  the  primary  fund  for  the  liquidation  of  the  incum- 
brance,* but  where  the  payment  of  an  outstanding  incum- 
brance, created  by  the  grantor,  expressly  constitutes  part  of 
the  purchase  money,  the  law  implies  an  undertaking  by  the 
purchaser  to  pay  it,  upon  which  the  mortgagee  may  recover,* 
§  25.  Dedication  by  Deed.  Intent,  as  has  been  stated,  is 
the  vital  principle  of  dedication.  In  a  case  where  acts  and 
declarations  are  relied  on  to  show  such  intent,  to  be  effectual 
they  must  be  unmistakable  in  their  purpose  and  decisive  in 
their  character;  and  in  every  case  must  be  unequivocally  and 
satisfactorily  proved."     Where  the   deed  relied  on   is   to  the 

iPike  V.    Brown,    7   Cush.    133;  206;  Jumel  y.    Jumel,  7  Paige.  595; 

Furnas  v.    Durgin,  119  Mass.  500;  Wedge  v.  Moore,  6  Cush.  8;  Eaton 

Schnuicker  v.    Sibert,  18   Kan.  104;  v.  Simmonds,  14  Pick.  98. 

Miller  w.  Thompson,  34  Mich.  10.  ^Twichell  v.   Mears,    6  Keporter, 

2  White  V.  Foster,  102  Mass.  375;  40;  and  see  Garnsey  v.  Rogers,   47 
Vaughan  v.  Greer,  38  Tex.  530.  N.  Y.  233. 

3  Gale  V.  Wilson,  30  Gratt.   (Va.)  «  Harris'  case,  20  Gratt.  (Va.)  833; 
166.  Holdane  v.  Cold   Spring,   21    N.  Y. 

'  Daniel  v.  Leitch,  13  Gratt.  (Va.)      474;  Harding  v.  Hale,  61  111.  192. 


211  ABSTRACTS    OF   TITLE. 

public  direct,  tliat  is,  to  the  State  or  any  of  its  municipal 
agencies,  no  question  as  to  the  intent  can  usually  arise,  but  when 
the  dedicatory  matter  forms  a  recital  or  aijjreemeiit  in  a  deed  be- 
tween individuals,  the  rule  above  stated  beconies  efficient  to  de- 
termine its  import.  Ln  ascertaining  the  intent  of  the  parties 
in  the  latter  case,  it  is  a  fundamental  rule  of  construction,  that 
the  lang-uage  employed  is  to  be  read  in  the  light  aflPorded  by 
the  subject-matter  and  the  surrounding  circumstances,^  while 
everv  part  of  the  deed  is  admissible  to  declare  the  meaning 
of  certain  passages,  and  such  construction  should  be  put  upon 
particular  words  as  will  best  answer  and  effectuate  the  appar- 
ent general  intention.^  The  recitals  indicative  of  dedication 
are  best  shown  by  a  literal  transcription,  whenever  the  circum- 
stances will  admit  of  such  treatment,  or  a  judicious  condensa- 
tion of  the  agreement,  covenants  and  declaration  of  uses,  may 
be  presented  when  that  would  not  be  desirable;  but  sufficient 
of  the  language  employed  should  in  all  cases  be  given  to  en- 
able counsel  to  determine  whether  there  has  been  a  dedica- 
tion to  public  uses,  or  simply  an  adjustment  of  the  claims  of 
conflicting  parties,  resulting  in  a  common  right  of  way  to  be 
aimexed  as  an  easement  to  the  property  for  the  conven- 
ience of  the  owners,  and  not  for  the  accommodation  of  the 
public. 

§  26.  Resulting  Trusts.  It  is  a  general  rule  of  equity, 
that  it  the  purchase  money  of  land  is  paid  by  one  person,  but 
the  deed,  through  any  accident,  mistake,  fraud,  or  other  cir- 
cumstance contrary  to  the  real  intention  of  the  parties,  is 
taken  in  the  name  of  another,  the  trust  of  the  legal  estate  re- 
sults to  him  who  advanced  the  money,^  and  this  circumstance 
formerly  raised  many  questions  in  examinations  of  title. 
However,  of  late  years,  the  operation  of  this  rule  has  been 
greatly  restricted  by  statute,  and  many  of  the  questions  which 

'Naslau.  Towne,  5WalI.  689.  Dryden    p.  Hanway,    31  Md.    254; 

^Talbott  V.  R.   R.   Co.,  31  Gratt.  Malloiy  v.   Mallory,  5   Bush  (Kv.), 

(Va.)  685.  464;  Johnson  v.  Quarles,  46  Mo.  423; 

3  Case  V.   Codding,  38   Cal.   191;  Nixon's  Appeal,    63  Pa.    St.    279; 

Frederick    v.     Haas,    5    Nev.   389;  Campbell  r.  Campbell.  21  Mich.  438; 

Flemms  f.   McHale,    47    111.    282;  Harvey  v.  Ledbetter,  48  Miss.  95. 


CONVEYANCES    BY    INDIVIDUALS.  215 

formerly  perplexed  the  examiner  are  now  laid  at  rest.  The 
statute  has  not  abolished  tinsts  arising  or  resulting  by  im- 
plication of  law,  but  in  a  majority  of  instances  has  declared 
the  legal  title  to  be  vested  in  the  alienee  named  in  the  deed, 
subject  to  the  claims  of  creditors  of  the  person  paying  the 
consideration,  in  whose  favor  a  trust  for  the  amount  of  their 
claims  results,  but  even  such  trust  can  not  be  established  to 
defeat  or  prejudice  the  title  of  a  purchaser  for  a  valuable  con- 
sideration and  without  notice  of  such  trust.'  Wherever  the 
foregoing  law  obtains,  and  it  is  now  very  general,  but  little 
difficulty  will  be  experienced  from  this  class  of  undisclosed 
trusts,  and  until  their  efficiency  has  been  declared  by  a  court 
of  competent  jurisdiction  they  can  form  no  appreciable  fac- 
tor in  making  up  the  estimate  of  title.  A  neglect  to  state  the 
consideration  of  the  conveyance  or  acknowledge  its  payment 
was  formerly  considered  evidence  of  a  resulting  trust  in  favor 
of  the  grantor  or  some  other  person  paying  same,  but  this,  as 
has  been  seen,  no  longer  prevails,  and  a  failure  to  recite  the 
consideration  will  not  materially  affect  the  conveyance  though 
it  may,  in  some  localities,  be  evidence  of  the  vendor's  lien. 

§  27.  Re-records  and  Duplicates.  Re-records  and  dupli- 
cates of  instruments  already  shown  in  present  or  former 
examinations,  if  they  show  no  variations,  may  be  passed  with 
the  briefest  noticie.  Such  instruments  only  serve  to  incumber 
the  chain,  and  should  be  kept  out  of  sight  as  far  as  possible. 

The  following  is  considered  a  sufficient  notice: 

Henry  M.  PacMiam^  hachelor, "]        Deed. 

to  I       Dated ^  etc. 

The    niinois    Central    Rail-  i.     *         *         *         *         * 

road  Conqxiny,  its  successors 

and  assig?is 


■3fr  *  *  *  * 

A  re-record  of  deed  re- 


corded Aufj.  16,  1852,  as  Doc.  36,168,  in  Booh  101,  page  580, 
as  appea/'s  by  the  Recordei'''s  certificate  appended  to  the 
record. 

»See   R.  S.  Wis.   Chap.  96;  Gen.  (Ky.),  47;  Durfee  p.  Pavitt,  14 Minn. 

Stat.  Minn    Cliap.  43;  Comp.  Laws.  424;  Fisher  v.  Forbes,  22  Mich.  454; 

Mich.    §  26.i7;  R.    S.  N.   Y.  §  51;  Foote  t-.  Bryant,  47  N.  Y.  544. 
consult,    Martin  v.   Martin,  5   Bush 


21G  ABSTRACTS   OF   TITLE. 

In  case  of  tliiplicates,  say: 

Apparently  a  duplicate  of  lease  reoorderl  Sept.  -5,  1882,  as 
Doe.  100.,580,  in  Book  910.  page  550  {and  shown  as  J^o.  15 
of  this  examination.) 

A  re-record,  of  course,  carries  its  own  internal  evidence, 
wiiile  duplicates  can  only  be  classed  as  such  by  inference,  yet 
where  there  appears  an  exact  correspondence  of  parties,  dates, 
subject-matter,  as  well  as  identity  of  language,  it  is  almost 
impossible  that  the  examiner  shall  err  in  classing  it  as  a 
duplicate.  When  the  originals  appear  in  the  same  examina- 
tion, re-records  and  duplicates  sliould,  whenever  practicable, 
immediately  follow  such  originals,  in  which  event  say: 

Apparently  a  duplicate  of  the  foregoing  instrument. 

When  such  original  instruments  do  not  form  a  portion  of 
the  examination,  the  re-records  should  not  be  inserted  in  the 
chain  of  title,  but  are  best  shown  among  the  appendices, 
under  the  head  of  "  Ee- records,"  or  "  We  also  find," 


CIIAPTEE  XVI. 


PAETICULAR  CLASSES    OF  INDIVIDUAL  COXVETANCES. 


§1. 

Marriage  settlements. 

§14. 

Municipal  corporations. 

2. 

Conveyances  to  husband  and 

15. 

Conveyances  to  corporations. 

wife. 

16. 

Conveyances   by  corporations. 

3. 

Conveyances  between  husband 

17. 

Continued  —  Execution  —  Ac- 

and wife. 

knowledgment. 

4. 

Conveyances      by       married 

18. 

Record  of  seal. 

women. 

19. 

Heirs  at  law. 

5. 

Effect  of  wife's  conveyance. 

20. 

Post  obit  conveyances. 

6. 

Acknowledgment  of  deeds  by 

21. 

Conveyances  by  delegated  au- 

married women. 

thority. 

7. 

Release  of  dower. 

22. 

Powers  of  attorney. 

8. 

Joint  tenancies  and  tenancies 

23. 

Revocations. 

in  common. 

24. 

Substitution. 

9. 

Pa\tition  deeds. 

25. 

Conveyances  in  trust. 

10. 

Partnership  conveyances. 

26. 

Declarations  of  trust. 

11. 

Corporate  conveyances. 

27. 

Removal  and    substitution  of 

12. 

Statute  of  mortmain. 

trustees. 

13. 

Power  of  acquisition — User. 

28. 

Resignation  of  trust. 

§  1.  Marriage  Settlements.  It  was  at  one  time  doubted 
whether  any  interest  in  either  real  or  personal  property  could 
be  settled  to  the  exclusive  use  of  a  married  woman  without 
the  intervention  of  trustees;  but  for  many  years  direct  convey- 
ances and  settlements  have  been  protected  in  equity  alike 
against  the  marital  rights  of  the  husband,  as  against  his  credit- 
ors.* Nor  is  it  at  all  material  whether  the  settlement  be  made 
by  a  stranger  or  by  the  husband  himself,  for  it  is  now  uni- 
versally held  that  a  settlement  by  a  husband,  on  his  wife,  made 
by  direct  conveyance  to  her,  will  be  enforced  in  the  same  man- 
ner, and  under  the  same  circumstances,  that  it  would  be  if 
made  by  a  stranger,  or  to  a  trustee  for  her  exclusive  use,''     A 


1 2  Story  's  Eq.  Jur.  §1380. 

2  Jones  V.   Clifton,   6    Rep.   324; 


Sims  V.  Rickets.  35  Ind.  192;     Put- 
nam V.  Bicknell,  18  Wis.  351;     Bur- 


(217) 


218  ABSTRACTS    OF   TITLE. 

inarriacjc  settlement  usually  conferred  upon  tlie  wife  only  the 
use  of  the  property  during  her  natural  life,  or  for  a  definite 
period,  with  a  remainder  in  fee  to  her  issue  or  other  persons 
designated;  but  marriage  settlements  proper  have  fallen  into 
general  disuse,  while  the  general  abolition  of  uses  and  trusts, 
and  removal  of  former  disabilities,  have  placed  conveyances 
for  this  purpose  upon  the  same  plane  and  subject  to  the  same 
rules  as  other  conveyances  between  individuals.  Convey- 
ances, of  whatever  nature,  intended  as  a  settlement,  should  be 
shown  quite  fully,  particularly  the  granting  clause  and  haben- 
dum, together  with  any  special  matter  bj^  way  of  restriction, 
for  the  power  of  disposition  may  be  restricted  or  enlarged  by 
the  terms  of  the  settlement;  and  in  construing  these  terms, 
the  intention  of  the  grantor,  as  apparent  upon  a  fair  con- 
struction of  the  instrument,  must  govern.^  If  the  instrument 
contains  any  express  or  implied  restrictions  upon  the  power 
of  disposition,  either  as  to  the  mode  of  conveyance,  or  pur- 
pose for  which  it  may  be  conveyed,  she  can  convey  it  in  no 
other  manner  and  for  no  other  purpose,  while  if  it  contains 
no  limitations  or  I'estrictions,  express  or  implied,  she  may  con- 
vey it  in  the  same  manner  as  her  general  estate.^ 

§  2.  Conveyances  to  Husband  and  Wife.  Under  the 
common  law,  a  grant  to  a  man  and  his  wife  does  not  consti- 
tute them  either  joint  tenants  or  tenants  in  common,  they 
being  in  legal  contemplation  but  one  person,  and  hence  un- 
able to  take  by  moieties.  Both  would  therefore  be  seized  of 
the  entirety;  neither  could  dispose  of  any  part  of  the  estate 
without  the  assent  of  the  other,  and  upon  the  death  of  either, 
the  whole  of  the  estate  would  remain  in  the  survivor.  This 
rule  has  not  been  materially  changed  by  statute  and  is  ac- 
cepted in  a  majority  of  the  States.^     In  such  an  estate  there 

dens  V.  Amperse,  14  Mich.  91;  Wal-  46  Mo.  5:12. 

lingford  v.  Allen,  10  Pet.  594.  ^  Arnold  v.  Arnold,  30  Ind.  305; 

1  Young   V.    Young,     7      Coldw.  Hemingway  v.  Scales,  42  Miss.  1; 

(Tenn.)  461;  McChesney  i\  Brown's  Washburn  v.  Burns,  34  N.  J.  L.  18; 

Heirs,  25  Gratt.  (Va.)  393.  McCurdy  v.  Canning,  64  Pa.  St.  39; 

^Young    V.    Young,      7     Coldw.  Fisher  v.  Provin,  25  Mich.  347;  Gar- 

(Tenn.)  461;  McClintic  t'.  Ocheltree,  ner  v.  Jones,  52  Mo.  68;  Robinson  v. 

4  W.  Va.  249;    Kimm  v.  Weippert,  Eagle,  29  Ark.  202;  Marburg  v.  Cole, 


IXDIVIDUAL    CONVEYANCES.  219 

can  be  no  partition,  as  neitlier  has  any  separate  interest.  Be- 
tween them  there  is  but  one  owner,  and  that  is  neither  the 
one  nor  the  other,  bnt  both  together.  From  the  peculiar  nat- 
ure of  tliis  estate,  and  from  the  le<^al  relation  of  the  parties, 
there  must  be  unity  of  estate,  unity  of  possession,  unity  of 
control,  and  unity  in  conveyiui^  and  encumbering  it;  and  it 
necessarily  and  logically  results  that  it  can  not  be  seized  and 
sold  upon  execution  for  the  separate  debts  of  either.'  In  sev- 
eral of  the  States  where  the  rule  formerly  prevailed,  it  has 
been  held  that  the  legal  unity  of  husband  and  wife  has  been 
broken  by  the  "  married  women's  "  acts,  and  that  they  take 
only  as  tenants  in  common.^  But  estates  which  had  vested 
prior  to  the  acts  in  question  are  not  affected,  changed  or  mod- 
ified by  them.  They  remove  no  disabilities  and  confer  no 
new  rights  in  relation  to  such  estates,  which  can  only  be  con- 
veyed or  encumbered  by  the  joint  act  of  both  parties,  while 
the  survivor  takes  an  absolute  title  to  the  whole  in  case  of 
death,  as  heretofore.^ 

§  3.  Conveyances  between  Husband  and  Wife,  It  is  now 
well  settled  that  a  conveyance  by  a  husband  to  his  wife,  with- 
out the  intervention  of  a  third  person  or  trustee,  where  suit- 
able and  meritorious,  and  not  in  fraud  of  creditors,  will  be 
upheld  in  equity-,*  while  in  those  States,  where  the  legal  iden- 
tity of  husband  and  w'ife  is  no  longer  recognized,  such  con- 
veyance may  be  good  at  law.*  Where  the  ancient  doctrine 
still  obtains,  a  deed  from  husband  to  wufe,  without  the  inter- 
vention ot  a  trustee,  is  void  at  law  ;  nor  can  a  court  of  equity 
regard  it  as  effectual  to  transfer  the  legal  title.  But  where 
such  deed  is  founded  upon  a  good  and  sufficient  considera- 
tion,* equity  will  enforce  it  according  to  the  intention  of  the 

49    Md.    4C2;    Hulett    v.   lulon,   57  *Hunt  v.  Johnson,  44  N.  T.  27; 

Ind.  412.  Simmons  v.   Thomas,  43  Miss.  81; 

J  Chandler  v.  Cheney,  37  Ind.  391;  Sherman  v.  Hogland,  64  Ind.  678 

McDuffi'.  Beauchamp,  50Miss.  531;  ^Booker  r.   Worrill,  66  Ga.  ;-'32; 

Hulett  V.  lulon,  57  Ind.  412.  Dickson  v.   Randal,    19   Kan.   212; 

2  Hoffman  v.  Stigers,  28  Iowa,  302;  Barclay  r.  Plant,  50  Ala.  509;  Kauf- 

Clark  V.  Clark.  56  N.  H.  105;  Coop-  man  v.  Whitney,  50  Miss.  103. 

er  V.  Cooper,  76  111.  57.  ^  Not  necessarily  monev:  Wells  v. 

SHarrei  v.  Wallner,  80  111.  197. 


220  AliSTKACTS    OF    TITLE. 

parties,  wliero  the  same  can  be  done  witliont  prejudice  to  the 
rights  ot"  others.'  A  vohmtary  conveyance,  tliat  is,  a  convey- 
ance without  consideration,  is  a  fraud  upon  the  creditors  of 
tlie  hushand,  even  in  the  absence  of  fraudulent  intent,  and 
tliis  is  especiall^^  true  when  the  conveyance  leaves  the  husband 
insolvent.'^  As  a  I'ule,  conveyances  of  this  class  call  for  close 
scrntiny,  and  frecpiently  for  inquiries  in ])ais.  Local  statutes 
will  go  far  to  settle  many  questions,  j'et  there  are  numerous 
cases,  even  under  favorable  statutes,  where  a  knowledge  of  the 
circumstances  and  situation  of  the  parties  must  result  in  the 
rejection  of  the  title  so  offered,  whether  the  conveyance  be  to 
the  wife  direct,  or  through  a  trustee,  for  it  is  a  fundamental 
principle  that  the  rights  of  creditors  can  not  be  infringed  or 
defeated  in  this  manner.^ 

§  4.  Conveyances  by  Married  ■Women.  1^0  class  of  Con- 
veyances call  for  greater  vigilance  or  closer  scrutiu}^  than 
conveyances  executed  by  married  women.  Though  at  present 
a  progressive  and  liberal  spirit  is  manifest  in  the  enactments 
of  the  various  State  Legislatures,  tending  to  remove  entirely 
all  restraints  and  impediments  from  the  free  acquisition  and 
alienation  of  real  property  by  married  women,  yet  such  enact- 
ments are  of  very  recent  origin,  and  furnish  no  rule  for  the 
construction  of  conveyances  prior  to  the  time  at  which  they 
became  effective.  At  common  law,  a  married  woman  could, 
make  no  disposition  of  her  real  estate,  except  by  some  matter 
of  record,  as  a  line  and  recovery;*  hence  it  follows  that  a 
separate  conveyance  of  her  property  by  a  woman  during  her 
coverture  would  be  void,  unless  specially  authorized  by 
statute.*  Such  statutes  now  exist,  and  confer  upon  a  feme 
covert  a  number  of  rights  which,  being  in  derogation  of  com- 
mon law  principles,  are  strictly  construed  by  the  courts  which 

Wells,    35   Miss.    664;    Wilder   v.  231. 

Brooks,  10  Minn  50;  Sims  v.  Rick-  ^  Aultman  r.  Obermeyer,  6  Neb. 

ets,  35  Ind.  181.  260. 

iHuber  v.   Huber,  10  Ohio,  371;  n  Blk.  Com.  293;  2  Kent  Com. 

Brookbank  v.  Kernard,  41  Ind.  339;  150. 

Cardell  v.  Ryder,  35  Vt.  47.  ^Hoyt  v.  Swar,  53  111.  134. 

2  Watson  V.   Riskamire,  45  Iowa, 


INDIVIDUAL    CONVEYANCES.  221 

have  usually  exacted  a  rigid  and  literal  compliance.  The  re- 
moval of  the  common  law  disabilities  was  not  accomplished 
at  any  one  time,  but  extends  over  a  series  of  years,  and  an 
additional  burden  is  thrown  on  examiner  and  counsel  by  this 
cause.  Different  formalities  were  requisite  at  different 
periods,  and  thorough  knowledge  of  the  changes  in  the  law 
in  this  respect  are  indispensable  to  a  correct  and  satisfactory 
examination.  B_y  the  common  law,  upon  the  marriage  of  a 
man  with  a  woman  seized  of  an  estate  of  inheritance,  he  be- 
came seized  of  the  freehold  jure  uxoris  during  their  joint 
lives,  and  if  he  had  issue  by  her  born  alive,  then  for  his  own 
life  absolutely  ;  in  which  latter  case,  if  he  survived  the  wife, 
he  was  st^ded  tenant  by  the  curtesy.*  Subsequently,  by 
statute,  the  husband  was  given  this  right  of  tenancy  by  the 
curtesy,  whether  they  had  issue  born  or  not.  The  first  enact- 
ments looking  toward  the  power  of  alienation  by  tlie  wife  pro- 
vided that  convej'ances  might  be  made  by  forms  of  deeds 
ordinarily  employed,  but  attended  by  many  formalities,  par- 
ticularly in  the  matter  of  acknowledgment  and  authentication, 
and  it  being  a  vital  principle  always  that  the  husband  join  in 
the  conveyance.  The  greater  part  of  these  formalities,  in  a 
majority  of  the  States,  are  no  longer  requisite,  the  gradual 
and  uniform  tendency  of  modern  legislation  being  to  facilitate 
the  power  of  alienation  by  w^omen  of  their  separate  estates, 
though  it  is  still  indispensable,  in  many  jurisdictions,  tliat  the 
husband  join  with  the  wife  in  the  execution  of  the  deed.^  The 
legislation,  in  some  of  the  more  advanced  States,  has  had  the 
effect  to  destroy  tlie  common  law  unity  of  person  in  husband 
and  wife  so  far  as  that  unity  is  represented  by  the  husband, 
and  in  its  stead  a  rule  lias  been  introduced  analogous  to  that 
of  the  civil  law,  by  which  the  wife  is  regarded  as  a  distinct 
person  so  far  as  her  separate  property,  contracts,  etc.,  are  con- 
cerned, while  her  conveyances  may  be  made  in  the  same  man- 
ner, and  with  like  effect,  as  if  she  were  unmarried.*     The  ten- 

1 1  Blk.  Com.  126;   2  Kent  Com.  Hand  v.  Winn,  52  Miss.  784;  Arm' 

108.  strong  v.  Ross,  20  N.  J.  Eq.  109. 

^Styles    V.    Probst,    69    III.   382;  ^ Price    v.    Osborn,   84    Wis.  34; 

HoUman    v.    De    Nyse,  51  Ala.  95;  Westlake  v.  Westlake,  34  Ohio  St. 


222  ABSTRACTS   OF   TITLE. 

aiicj  by  the  curtesy  is  becoming  obsolete,  or  attaches  only 
on  the  death  of  the  wife,  and  then  bnt  to  such  lands  as  she 
died  seized  of,  and  of  which  she  had  made  no  final  disposition 
by  will.  "Where,  however,  the  laws  of  a  State  give  to  the  hus- 
band the  same  right  of  dower  in  the  real  estate  of  the  wife 
that  she  has  in  his  real  estate,  the  effect  of  a  non-joinder  of  the 
husband  in  a  dted  of  the  wife's  lands  has  the  effect  to  preserve 
such  dower  interest,  and  the  joinder  becomes  necessary  to  a 
properly  executed  deed.^ 

§  5,  Effect  of  Wife's  Conveyance.  When  a  married 
woman  joins  with  her  husband,  or  otherwise  properly  executes 
a  conveyance  of  lands  held  by  her  in  her  own  right,  which 
purports  to  convey  the  entire  estate  therein,  she  is  estopped 
from  afterward  setting  up  any  title  to  such  lands,  whether  it 
existed  at  the  time  of  making  such  conveyance,  or  was  subse- 
quently acquired  by  her,'''  and  the  deed  or  other  contract  of  a 
married  woman  respecting  her  separate  property  may  be  re- 
formed for  mistake  the  same  as  if  she  were  sole.  Where  the 
deed  is  made  upon  a  good  consideration,  defects  may  be  reme- 
died, and  the  deed  specifically  enfoi'ced  in  equity.^ 

§  6.  Continued — Acknovyledgment.  The  formalities  at- 
tending the  acknowledgment  of  married  women's  conveyances 
now  differ  in  no  material  respect  from  other  deeds,  though 
formerly  they  involved  no  little  circumlocution  and  ceremony. 
It  was,  and,  in  some  few  States,  is  yet,  customary  to  make  a 
personal  examination  of  the  wife  apart  from  the  husband,  in 
which  the  contents  and  nature  of  the  instrument  must  be 
made  known  to  her,  and  upon  which  she  is  required  to  make 
a  "free  and  voluntary"  acknowledgment  without  "  fear  or 
compulsion,"  and  to  further  state  that  she  does  not  wish  to 
retract  same,  resigns  her  dower,  waives  her  homestead  rights, 
etc.,  and  when  such  is  the  law,  courts  have  usually  exacted  a 
strict  and  literal  compliance,  and  material  departures  or  omis- 
sions have  been  held  to  vitiate  the  conveyance  as  a  means  of 

621;  Brown  v.  Kimbrough,  55  Ga.  ^  King  t?.  Rea,  56  Ind.  1. 

41.  ^  Knox  V.  Brady,  74  111.  476;  Shiv- 

'  Huston  V.  Seeley,  27  Iowa,  183.         ers  v.  Smamons,  54  Miss.  520. 


INDIVIDUAL    CONVEYANCES.  223 

passing  the  wife's  interest  in  the  property.^  "  The  law,"  says 
Proffatt,^  "  long  looked  upon  the  wife  as  under  the  control  of 
the  husband,  holding  him  liable  for  her  torts  committed  in 
his  presence,  on  the  theory  of  the  power  of  coercion  over  her. 
So  it  was  not  expected  that  in  his  presence,  and  within  his 
hearing,  she  would  be  likely  to  act  contrary  to  his  wishes,  and 
therefore  it  required  her  to  signify  her  wish  or  intention  apart 
from  him  before  the  officer  taking  the  acknowledgment."  The 
result  of  this  separate  examination  is  sometimes  embodied  in 
a  separate  certiiicate,  but  usually  in  a  separate  clause  attached 
to  or  following  the  general  statement  of  acknowledgment,  and 
in  all  cases  must  be  clear  and  explicit. 

§  7.  Release  of  Dower.  The  right  to  dower  is  a  legal  right 
which  can  not  be  barred,  unless  it  has  been  relinquished  in  the 
manner  prescribed  by  law,^  and  this  may  be  accomplished 
either  by  a  joinder  of  the  wife  in  a  conveyance  by  the  hus- 
band, or  by  a  separate  deed  of  relinquishment.*  The  release 
which  a  woman  makes  by  joining  with  her  husband  operates 
against  her  only  by  estoppel  and  not  by  grant,^  and,  in  the  ab- 
sence of  any  express  legislative  requirement  to  the  conti-ary, 
the  release  will  be  valid  and  effectual  without  mention  of  her 
name,  or  of  the  dower  in  the  body  of  the  deed.  It  being  only 
an  inchoate  right,  and  not  a  present  estate,  no  words  of  grant 
are  necessary.^      Nor  is  it  necessary  that  there  should  be  a 

1  Pribble  v.  Hall,  13  Bush  (Ky.),  *196,  andsee  also  Bish.  Mar.  &  Div., 
61;  Looneyt'.Adamson,  48Tex.619;  §661;  2  Black.  Com.  130;  4  Kent 
Wright  V.  Dufield,  58  Tenn.  218;  Com.  54;  Whitsell  v.  Mills,  6  Ind. 
Petition  of  Bateman,  11  R.  I.  585;  229;  McCraney  v.  McCraney,  5  Iowa, 
Little  V.  Dodge,  32  Ark.  453.  23  '.     A  reasonahle  provision  out  of 

2  ProflPatt  on  Notaries,  40.  the  husband's  estate  is  usually  given 
^ Davis  V.  McDonald,  42  Ga.  205.      in  lieu  of   dower.     See  "Chancery 

"  A  divorce  from  the  bonds  of  matri-  Proceedings, "  infra. 
mony,"    observes    Mr.    Washburn,  *  Sykes    v.    Sykes,    49  Miss.  190; 

"  always  defeats  the  right  of  dower,  Shepard  v.  Howard,  2  N.  H.  507; 

unless  it  be  saved  by  the  statute  au-  Thatcher  r.  Howland,    2  Met.  41. 
thorizing  such   divorce;  for  at  com-  ^  Mallony  r.  Horan,  12  Abb.  (N.T.) 

mon  law,  in  order  to  entitle  a  widow  Pr.  N.  S.  289;  do.  49  N.  Y.  111. 
to  dower,  she  must  have   been  the  *  Johnson  v.  Montgomery,  51   111. 

wife  of  the  husband  at  the  time  of  185;  Frost  v.   Deering,  21  Me.  156; 

his  decease":     1  Wash.  Real  Prop.  Sterns    v.    Swift,    8    Pick.  532,  but 


22-i  ABSTRACTS    OF    TITLE. 

consideration  movin^ir  to  lier,  and  though  she  might  insist  on 
a  consideration  inuring  solely  to  herself  as  a  condition  uf  such 
release,  yet,  failing  to  exact  this,  her  release  will  be  good  if 
supported  by  an  adequate  consideration  moving  to  the  hus- 
band alone/  Where  a  wife  joins  with  her  husband  in  a  con- 
veyance of  his  lands,  which  is  properly  executed  by  her,  is 
effectual  and  operative  against  him,  and  is  not  superseded  or 
set  aside  as  against  him  or  his  grantee,  her  inchoate  right  of 
dower  is  thereby  forever  extinguished  for  all  purposes.^  The 
conveyance,  however,  must  be  of  the  freehold  or  fee,  and  such 
as  would  destroy  the  seizin  of  the  husband,  wliile  the  right  is 
of  such  a  nature,  when  inchoate,  that  it  can  not  be  itself  trans- 
ferred by  any  of  the  instruments  of  conveyance  in  common 
nse,*  and  can  be  released  only  to  the  owner  of  the  fee,  or  to 
some  one  in  privity  with  tlie  title  by  his  covenants  of  war- 
rant3\^  The  release  is  often  accomplished  by  a  separate  in- 
strument of  relinquishment,  but  as  this  deed  acts  only  by  way 
of  estoppel,  no  particular  form  of  words  is  necessary,  and  any 
apt  words  indicating  the  intent  will  suffice.'  The  abstract  of 
such  an  instrument  would  consist  mainly  of  its  recitals,  thus: 


Clio  S.  Greene 


Release  of  Doioer. 


Dated  Nov.  6,  1851. 
Recorded  Nov.  7,  1851. 
Vol.  ''B;'  ^age  379. 


to 

James  W.  P enfold. 

'■'■  For  a  vnluaMe  consideration,''^  releases  all  right  and 
claim  of  dower  in  and  to  a  certain  piece  of  land  in  the 
South  We8tfractio7ial  quarter  of  Section  19,  Toion  2  North, 
Range  S3,  Fast  — ,  described  in  a  conveyance  hy  "  my  hus- 
hand,''^  Patrich  P.  Greene,  to  said  James  W.  Penfold,  and 
recorded  in  Vol.  '■'■B,''''  page  12 Jf.. 

Acknoviledged  Nov.  6,  1851. 

compare  McFarland    v.   Febiger,  7  ^  La    Framboise    v.    Crow,  56  111. 

Ohio,  194.  197;  Reed  v.  Ash,  30  Ark.  775. 

1  Bailey  v.  Lilten,  52  Ala.  282.  ^Gillilan  v.  Swift,  21  N.  Y.  Sup. 

2  Elmdorf  v.  Lockwood,  57  N.  Y.  Ct.  574. 

322.  ''  Deeds  of  this  character  are  more 

3  Sykes  V.  Sykes,  49  Miss.  190,  properly   "  Sun-enders  "  than  "  Re- 
*MaiTin  v.  Smith,  46  N.  Y.  571. 


INDIVID  CAL    CONVEYANCES.  225 

"Whenever  practicable,  let  the  deed  of  relinqnishinent  im- 
mediately follow  the  husband's  deed  irrespective  of  interven- 
ing  conveyances,  or  if  to  a  grantee  of  the  husband's  grantee, 
then  immediately  after  his  deed,  the  object  being  to  keep  the 
dower  interest  closely  associated  with  the  fee. 

§  8.  Joint  Tenancies  and  Tenancies  in  Common.  Where 
several  persons  purchase  land,  an  I  advance  the  money  in 
equal  pnqjortions,  and  take  a  conveyance  to  them  and  their 
heirs,  this,  at  common  law,  is  a  joint  tenancy;  that  is,  a 
purchase  by  them  jointly  of  the  chance  of  survivorship,  which 
may  happen  to  the  one  of  them  as  well  as  to  the  other.'  "  The 
doctrine  of  survivorship  is  not  in  accordance  with  the  genius 
of  our  institutions,"  remarks  Morton,  J.,^  and  the  incident  of 
survivoi'ship  has  been  generally  abolished  in  the  United  States, 
except  in  a  few  instances,  while  the  extent  of  its  operation  has 
everywhere  been  very  much  restricted.  Conveyances  to  two 
or  more  persons  are  now  usually  held  to  create  a  tenancy  in 
common,  unless  the  language  used  clearly  and  manifestly 
shows  an  intention  to  create  a  joint  tenancy.  Tenants  in  com- 
mon may  convey  and  dispose  of  their  undivided  interests  to  a 
stranger  and  the  same  raa}^  be  taken  and  sold  on  execution,^  the 
purchaser  simply  taking  the  same  position  in  relation  to  the 
co-tenants  as  was  occupied  by  the  grantor  or  judgment  debtor; 
but  one  tenant  in  common,  owning  an  undivided  interest, 
can  not  convey  to  a  stranger  a  certain  portion  of  the  tract  in 
common,  and  put  the  purchaser  in  possession  of  the  portion 
conveyed,*  unless  the  other  tenants  confirm  the  conveyance.* 

§  9,  Partition  Deeds.  AVhei'e  propert}^  is  owned  by  sev- 
eral in  comujon,  they  iukj,  by  properly  executed  deeds,  con- 
vey to  each  other  in  severalty,  specific  portions  of  what  was 
formerly  held  jointly,  and  where  the  course  of  title  clearly 
shows   the   origin  of    their   property    rights  and  the  proper 

leases,"  but  this  is  the  name  they  Shcpardson    v.  Rowland,    28  Wis. 

have  acquired.  108;  Hartford,  etc.,  Ore  Co.  r.  Mil- 

1  2  Sugd.  V.  and  P.  425  (Am.  ed.)  ler,  41  Conn.    112.     Compare  Barn- 

2  Burnett  v.  Pratt,  22  Pick.  -557.  hart  v.  Campbell,  50  Mo.  idl. 

3  Butler  V.  Roys,  25  Mich.  53.  ^  Hartford,  etc.,  Ore  Co.  u.  Miller, 
*Mattox  V.  Hightshue,  39  Ind.  95;  41  Conn.  112. 

15 


226  ABSTRACTS    OF   TITLE. 

measure  of  tlicir  title,  the  deeds  so  executed  are  evidences  of 
title  of  the  highest  order.  This  will  be  the  case  of  partners,  and 
all  purchasers  by  deed  or  will  in  which  they  are  specifically 
desigiuited,  but  not  always  when  the  claim  is  by  descent.  A 
partition  deed  is  mutual  unless  otherwise  specified,  the  inter- 
change of  interests  forming  the  consideration.  In  abstracting 
same,  all  the  material  recitals  should  be  fully  stated,  and  the 
method  of  division  minutely  described.  The  ordinary  cov- 
enants will  not,  as  a  rule,  be  found,  but  a  mutual  covenant  of 
non-claim  and  warranty  against  their  own  acts,  and  those 
claiming  under  them,  is  usually  inserted  in  their  place.  The 
deed  should  be  signed  and  acknowledged  by  both,  and  is  pre- 
sumably interchangeably  delivered.  A  deed  possessing  these 
and  other  requisites  might  be  shown  in  the  abstract  as  fol- 
lows: 

Andrew  Barlow^  ]      Partition  Deed. 

to  and  with  >•      Dated,  etc. 

Charles  Dalton.  )         *        *        *  ,     *        * 

Recites,  that  said  parties  are  novj  seized,  in  fee  simple,  as 
tenants  in  com.mon  of  the  following  described  real  estate 
[describing  same'],  and  have  agreed  to  make  a  full,  jnst,  and 
equal  partition  and  division  between  them,  of  and  in  the 
aforesaid  tract,  of  and  according  to  their  respective  shares 
and  interest  therein,  in  manner  following  {describing  sameP\ 

And  said  Andreio  Barlow  gives,  grants,  allots,  assigns, 
sets  over,  releases  and  confirms  to  said  Charles  Dalton  the 
said  first  described  piece  or  allotment  of  land,  to  have  and  to 
hold    *     *    ^    ^     *    in  severalty,  as  his  full  share  thereon. 

And  Charles  Dalton  gives,  grants,  etc.  {describing  his  allot- 
ment^ 

And  said  Andrew  Barlow  covenants  that  said  Charles 
Dalton  shall  freely,  etc.,  hold  and  enjoy  said  first  described 
piece  or  allotment  of  land  without  molestation,  interruption, 
or  denial  of  him,  said  Andrew  Barlow^  or  any  person  claim- 

'  When    the    course    of     title    is      ance  in  this  abstract  is  supposed  to 
through  Andrew  Barlow,  simply  re-      be  from  Charles  Dalton. 
verse  the  names.     The  next  convey- 


INDIVIDUAL    CONVEYANCES.  227 

ing  5y,  through,  or  under  him.  {And  said  Charles  Dalton 
covenants  the  same  in  regard  to  said  second  described  piece 
or  allotment  of  land.) 

Signed  and  aclcnowledged  hy  hoth  parties  August  i,  1881. 

§  10.  Partnership  Conveyances.  Lands  held  bj  several 
persons  as  partners,  purchased  by  them  with  partnership 
funds  and  for  partnership  pnrjioses,  are  reo^arded  in  a  some- 
what different  light  from  lands  held  by  an  individual,  and  for 
certain  purposes  may  be  treated  as  personal  property,  No 
other  or  different  formalities  are  necessary  in  its  acquisition 
than  in  case  of  ordinary  deeds  of  convej^ance,  yet  though  the 
conveyance  to  them  is  in  form  such  as  to  make  them  tenants 
in  common,  still  in  the  absence  of  an  express  agreement,  or 
of  circumstances  showing  an  intent  that  the  estate  conveyed 
shall  be  held  for  their  separate  use,  it  will  be  considered  and 
treated  in  equity  as  vesting  in  them  in  their  partnership  ca- 
pacity, and  clothed  with  an  implied  trust,  that  they  hold  it 
until  the  purposes  for  which  it  was  purchased  shall  be  accom- 
plished, and  that  it  shall  be  applied,  if  necessar}'-,  to  the  pay- 
ment of  the  partnership  debts.  Upon  the  dissolution  of  the 
partnership  by  the  death  of  one  of  the  partners,  the  survivor 
has  an  equitable  lien  upon  such  real  estate  for  his  tndemnity 
against  the  debts  of  the  firm,  and  for  securing  the  balance 
that  may  be  due  to  him  from  the  deceased  partner  on  settle- 
ment of  the  partnership  accounts  between  them,  and  the 
widow  and  heirs  of  such  deceased  partner  have  no  beneficial 
interest  in  such  real  estate  until  the  surviving  partner  is  so 
indemnified.^  As  the  widow  and  heirs  can  claim  only  in  the 
right  of  the  husband  and  father,  such  derivative  right  in 
equity  will  extend,  no  further  in  behalf  of  the  wife  and  chil- 
dren than  that  of  the  partner  from  whom  it  is  derived.^  Con- 
veyances of  partnership  real  estate  should  be  executed  by  each 
and  all  of  the  partners  in  the  same  manner  as  deeds  by  ten- 
ants in  common,  and  it  seems  that  a  deed  executed  by  one 
partner  only  in   the   name  of   the  firm  will  convey  only  the 

^2  Sugd.  V.  and  P.  427  (Perkins'      Cobble  v.  Tomlinson,  50  Tnd.  550. 
notes);    Dyer  v.   Clark,  5  Met.  562;  *  Burnside  r.  Merrick,  4  Met.  537. 


228  ABSTRACTS   OF   TITLE. 

undivided  portion  of  tlic  estate  owned  bj  such  pnrtner,'  while 
the  authorities  are  unanimous  in  declaring  that  a  firm  name, 
as  "  Jno.  Smitli  &  Co.,"  is  not  a  proper  designation  either  of 
grantor  or  grantee,  and  effective  in  either  case  only  for  or 
against  the  persons  specifically  named.^ 

§  H.  Corporate  Conveyances.  There  are  three  classes  of 
corporations  recognized  bj  our  laws  :  Public  municipal  cor- 
poi'ations,  corporations  technically  private,  but  of  a  quasi 
public  cliaracter,  as  railroads,  etc.,  and  corporations  strictly 
private,  all  of  whom,  under  general  or  special  conditions,  have 
the  power  to  acquire,  hold,  and  transmit  the  title  to  real 
estate.  Though  regarded  in  law  as  persons  for  certain  pur- 
poses, they  are  not  entitled  to  the  privileges  of  citizens,^  as 
guaranteed  by  the  Federal  Constitution,  neither  in  the  State 
of  their  creation,  nor  in  other  States  which  they  may  enter 
for  the  purpose  of  business.  Their  right  to  acquire  and 
transmit  property  is  a  statutory  one  in  the  home  State,  and  in 
another  State  is  based  upon  the  comity  between  the  States. 
In  the  latter  case  it  is  a  voluntary  act  of  grace  of  the  sovereign 
power,*  and  is  inadmissible  when  contrary  to  its  policy  or  prej- 
udicial to  its  interests.^  A  corporation  has  only  such  powers 
as  its  charter  gives  it,  either  expressly,  or  as  incident  to  its  ex- 
istence, and  in  determining  whether  a  given  act  is  within  the 

^Dillon  V.   Brown,   11  Gray,  179.  ^  Althougli  a  corporation  is  not  a 

Xor  will  it  render  the  other  partners  citizen   within  several  provisions  of 

liable  on  the  covenants:     Hobson  v.  Ihe  Constitution,  yet  where  rights  of 

Porter,  2  Col.  T.  28.  action    are    to  be    enforced  by  or 

^Arthur  v.  Webster,  22  Mo.  378;  against  a  corporation,  it  will  be  con- 
Winter  V.  Stock,  29  Cal.  407;  Gos-  sidered  as  a  citizen  of  the  State 
sett  V.  Kent,  19  Ark.  607;  Barnett  v.  where  it  was  created:  Bailway  Co. 
Lachman,  12  Nev.  .361.  A  sealed  v.  Whitton,  13  Wall.  270.  This, 
instmment  (deed  or  other  specialty),  however,  applies  more  particularly 
executed  by  one  partner  in  the  name  to  controversies  in  the  Federal 
of  the  firm,  may  be  treated  as  the  Courts. 

deed  of  all  the  partners,  upon  proof  *  Ducat  v.  Chicago,   48   111.  172; 

that  prior  to  the  execution  the  oth-  Ins.   Co.  v.  Commonwealth,  5  Bush 

ers  had  authorized  him  to  execute  (Ky.),  68;  State  v.  Fosdick,  21  La. 

the  instrument,  and  after  execution,  Ann.  434. 

with  full  knowledge,  acquiesced  in  ^  Carroll  v.  East  St.  Louis,  67  111. 

what  he  had  done:    Gibson  «.  War-  568. 
den,  14  Wall.  244. 


INDIVIDUAL    CONVEYANCES. 


220 


power  of  a  corporation,  it  is  necessary  to  consider,  first,  wlietlier 
the  act  falls  within  the  powers  expressly  enumerated  in  the 
charter  or  defined  by  law;  and,  second,  wliether  it  is  necessary 
to  the  exercise  of  one  of  the  enumerated  powers,^  and  these  apply 
both  to  the  acquisition  and  transfer  of  real  property.  Land 
which  a  corporation  can  not  hold  in  its  own  name  it  can  not 
hold  in  the  name  of  another,  and  when  a  corporation  can  not 
hold  the  lei^al  title  to  land,  it  can  not  take  a  beneficial  interest 
in  it.^  It  would  seem,  tlierefore,  that  the  organic  act,  or 
some  portion  thereof,  should  supplement  every  conveyance 
purporting  to  pass  title  to  a  corporation  as  constituting  one  of 
the  strongest  assurances  of  the  validity  of  subsequent  convey- 
ances, but  in  practice  this  is  seldom  done,  though  the  author- 
ity to  make  a  deed  frequentlj'  constitutes  one  of  the  recitals 
in  conveyances  from  corporations.  As  corporations  are  now 
almost  universally  organized  under  ireneral  laws,  which  define 
their  powers  in  this  respect,'  the  matter  presents  fewer  intri- 
cacies than  formerly,  yet  as  a  rule,  whenever  during  the 
course  of  title  the  same  passes  through  a  corporation,  and  the 
conveyances  furnish  no  internal  evidence  to  demonstrate  their 
validity,  a  requisition  should  be  made  by  the  examining  coun- 
sel for  such  information  as  in  his  opinion  may  be  necessary 
to  show  same. 


1  Vandall  v.  Dock  Co.,  40  Cal.  83; 
Pullan  V.  R.  R.  Co.,  4  Biss.  35; 
Weckler  r.  Bank,  42  Md.  581 ;  Mat- 
thews V.  Skinner,  62  Mo.  329.  In 
determining  whether  a  corporation 
can  make  a  particular  contract,  it 
must  be  considered  whether  its  char- 
tei',  or  some  statute  binding:  upon  it, 
forbids  or  permits  it  to  make  such  a 
contract;  and,  if  the  charter  and 
valid  statutory  law  are  silent  upon 
the  subject,  whether  the  power  to 
make  such  a  contract  may  not  be 
implied  on  the  part  of  the  corpora- 
tion as  directly  or  incidentally  neces- 
saiy  to  enable  it  to  fulfill  the  purpose 
of  its  existence,  or  whether  the  con- 


tract is  entirely  foreig:n  to  that  pur- 
pose: "Weckler  v.  Bank,  42  Md. 
581;  Watson  v.  Water  Co.,  36  N.  J. 
L.  195. 

2  Coleman  v.  R.  R.  Co.,  49  Cal. 
517. 

^  The  filing  of  articles  of  incorpo- 
ration in  one  of  the  county  offices 
and  with  the  Secretary  of  State  is 
now  the  usual  manner  of  organizing 
corporations.  The  law  and  the  arti- 
cles so  filed,  taken  together,  are  con- 
sidered in  the  nature  of  a  grant 
from  the  State,  and  constitute  the 
charter  of  the  company :  Abbott  r. 
Smelting  Co.,  4  Neb.  416;  Mining 
Co.  V.  Herkimer,  46  Ind.  142;  Whet- 


230  ADSTKACTS   OF    TITLE. 

§  12.  Statutes  of  Mortmain.  The  common  law  right  of 
corjiorutions  to  take  and  hold  real  estate  has  been  restrained 
in  England  from  an  early  day,  by  a  variety  of  laws  called 
statutes  of  mortmain,  which  were  passed  to  repress  tlie  grasp- 
ing and  rapacious  spirit  of  the  church  which  was  absorbing 
in  perpetuity  the  best  lands  in  the  kingdom.  ''Tliey  were 
called  statutes  of  mortmain,"  observes  an  eminent  writer, 
"  because  designed  to  prevent  the  holding  of  lands  by  the  dead 
C?t*^(?A  of  ecclesiastical  corporations,  which  in  early  times  were 
composed  of  members  dead  in  law,  and  in  whose  possession 
property  was  forever  dead  and  unproductive  to  the  feudal  su- 
perior and  the  public."*  This  system  of  restraint,  though 
originally  confined  to  religious  corporations  was  subsequently 
extended  to  civil  or  lay  corporations.  The  English  statutes  of 
mortmain,  though  they  have  been  held  in  some  of  the  States 
to  be  the  law,  so  far  as  applicable  to  their  political  condition, 
have  not  been  re-enacted  in  this  country,  yet  the  policy  has 
been  retained  and  is  manifest  in  the  general  and  special  en- 
actments of  every  State.  To  prevent  monopolies,  and  to  con- 
fine the  action  of  incorporated  companies  strictly  within  their 
proper  sphere,  the  acts  incorporating  them  almost  invariably 
limit  not  only  the  amount  of  property  they  shall  hold,  but  fre- 
quently prescribe  in  what  it  shall  consist,  the  purposes  for 
which  it  shall  alone  be  purchased  and  held,  and  the  mode  in 
which  it  shall  be  applied  to  effect  those  purposes.^  Special 
legislation  for  corporations  is  quite  generallj'  abolished,  and 
companies  are  incorporated  under  general  laws  of  uniform 
application,  but  the  policy  is  still  vigorously  maintained. 

§  13.  Power  of  Acquisition — User.  There  is  a  broad  dis- 
tinction between  the  power  of  acquisition,  and  the  use  to 
which  the  propert}^  is  to  be  applied,  and  the  effect  of  the  dis- 
tinction upon  the  rights  of  third  persons  is  equally  marked. 
Wliere  the  charter  of  a  corporation,  or  the  general  law  under 
which  it  is  organized,  prohibits  the  purchase  of  lands  for  any 

stone  i;.  Ottawa  University,  13  Kan.  ^  Ang.  &   Ames   on  Corp.  §   14S; 

320;    Hunt    J'.  Bridge  Co.,  11  Kan.  Co.  Lit.  2  b.  ;  1  Black.  Com.  479. 

4l2;    State    V.    LetHugwell,  54  Mo.  '^  kxx^.  k  Ames  on  Corp.  §  151, 
458. 


INDIVIDUAL    CONVEYANCES.  231 

purpose,  a  deed  to  it  would  be  an  utter  nullity,  as  its  capacity 
to  take  is  determined  by  the  instrument  or  act  which  gave  it 
existence/  but  having  the  power  to  purchase  and  take,  though 
for  a  specific  purpose  only,  it  becomes  fully  invested  with  title 
by  a  deed  properly  executed,  even  though  the  property  be  ac- 
quired and  used  for  a  purpose  forbidden  by  the  organic  act.'' 
As  a  rule  the  deeds  to  and  from  corporations  are  effective  to 
convey  the  title,  and  title  so  derived  can  not  be  impeached  col- 
Jaterally,  nor  their  validity  be  questioned  by  third  persons,  on 
the  ground  that  the  transaction  was  beyond  the  corporate 
power;  for  where  a  corporation  exceeds  its  powers,  the  remedy 
is  by  a  direct  action  in  the  name  of  the  State  ^  who  alone  can 
interfere.*  Parties  dealing  with  corporations  are  chargeable, 
however,  with  notice  of  the  limitations  imposed  by  the  char- 
ter ujion  their  powers.* 

§  14.  Municipal  Corporations.  Municipal  corporations 
are  creatures  of  the  statute,  and  can  exercise  only  such  powers 
as  are  expressly  conferred,  or  such  as  arise,  by  implication, 
from  general  powers  granted.  Where  the  charter  empowers 
a  municipal  corporation  to  buy  and  hold  real  property,  it 
must  be  understood  to  be  purchases  made  in  the  ordinary  way, 
and  for  corporate  purposes  only;  and  a  grant  to  purchase  for 
particular  purposes  would  seem  to  be  a  limitation  on  the 
power  of  such  corporations,  and  to  exclude,  by  necessary  im- 
plication, all  purcliases  for  mere  speculation  and  profit. 
"  Power  to  purchase  for  speculative  purposes,"  says  Scott,  J .,"  is 
not  among  the  usual  powers  bestowed  on  municipal  corpora- 
tions, nor  does  such  power  arise,  by  implication,  from  any  of 
the  ordinary  powers  conferred  on  such  corporations.'**  Munic- 
ipal corporations,  under  a  general  grant  of  power  to  buy  and 
hold   land,  may    purchase   within    the   corporate  limits,  such 

^  Leazure  v.   Hillegas,  7   S.  &  R.  generally  applied  only  to  such  con- 

(Pa.)  ;U9.  tracts  as    remain  wholly  executory: 

2  Hough  V.  Land  Co.,  73  Til.  23.  Thompson  v.  Lambart,  44  Iowa,  239. 

^  Smith  V.  Sheeley,  12  Wall.  358;  *  Franklin  Co.  v.  Lewiston   Inst. 

Kelly  V.  Transportation  Co.,  3  Oreg.  for  Savings,  68  Me.  43. 

189,  *City  of  Champaign  r.  Harmon, 

*  DeCamp  w.  Dobbins,  29  N.  J.  Eq.  98  111.   491;  and  see  2  Dill.  Muu. 

36.     The  doctrine  of  ultra  vires  is  Corp.  §  433. 


232  ABSTRACTS    OF   TITLE. 

property  as  may  be  necessary  for  corporate  purposes,  and 
may  even  buy  and  hold  real  estate  beyond  the  corporate  lim- 
its, for  the  location  of  cemeteries,  pest  houses,  etc.,'  but  in  the 
absence  of  any  euabHus^  statute,  can  not  become  the  pur- 
chaser of  lands  or  lots  at  a  tax  sale,  and  on  compliance  with 
the  statute  in  that  rei^ard  obtain  a  deed  that  will  invest  such 
corporations  with  the  title  to  the  property.^ 

§  15.  Conveyances  to  Corporations.  By  common  law,  and 
in  the  absence  of  statutory  prohibitions,  corporations  ag- 
gregate, in  whatever  manner  created,  can  take,  like  natural 
persons,  by  every  method  of  conveyance  known  to  tiie  law.^ 
No  particular  words  of  grant  are  necessary,  other  than  those 
in  common  use  in  conveyances  to  natural  persons,  though  it 
is  usual  to  insert,  as  a  word  of  limitation,  the  term  "succes- 
sors." The  word  is  not  necessary,  however,  to  convey  a  fee 
simple,  independent  of  the  statute  which  provides  for  a  fee 
unless  restrained  by  express  terms  or  necessary  implication; 
for,  admitting  that  such  a  grant  be  strictly  only  a  life  estate, 
yet  as  the  corporation,  unless  of  limited  duration,  never  dies, 
such  estate  for  life  is  perpetual,  or  equivalent  to  a  fee  simple, 
and  therefore  the  law  allows  it  to  be  one.*  As  between  the 
parties,  where  the  corporation  is  authorized  by  its  charter  or 
the  law  under  which  it  is  organized,  to  purchase  land,  receive 
conveyances  for,  and  hold  title  to  the  same,  but  is  prohibited 
from  purchasing  and  holding  for  any  other  than  a  prescribed 
purpose,  the  question  of  the  validity  of  the  title  conveyed  can 
not  be  inquired  into.  The  title  vests  in  the  corporation  by  a 
deed  duly  executed,  and  the  question  as  to  whether  the  cor- 
poration lias  exceeded  its  power  can  be  raised  onlj'  by  the 
State  or  by  a  stockholder.*     A  distinction  must,  however,  be 

1  2  Dill.  Mun.   Corp.  §  435.     The      98111.491. 

general  rule  is  that  municipal  cor-  ^  Am.  Bible   Society  r.  Sherwood, 

porations  can  not  purchase  or  hold  4  Abb.   (N.  Y.)  App.    227;     Aug.  & 

real  esta'^e   beyond  their  territorial  Ames  on^Corp.  140. 

limits,  unless  this  power  is  conferred  *  Ang.  &   Ames   on   Corp.  141;    2 

by  the  legislature:      2  Dill.    Mun.  Blk.  Com.    109;  Overseers  v.  Sears, 

Corp.  §  ^35,  a;id  see  Denton  r.  Jack-  22  Pick.  122;  Congregational  Society 

son,  2  Johns.  Ch.  .336;  Chambers  v.  v.  Stark,  34  Vt.  243. 

S\  Louis.  29  Mo.  543.  ^  jjougj^  ^,   j^^^^  q^^  73  j^^  23; 

2  City  of  Champaign  v.  Harmon,  Smith   v.    Sheeley,    12  Wtill.    358; 


INDIVIDUAL    CONVEYANCES.  233 

observed,  between    the    power  of  acquisition    and  the  use  to 
which  the  land  is  to  be  applied. 

§  16.  Conveyances  by  Corporations.  All  private  corpo- 
rations liave  an  incidental  ri^-ht  to  alien  or  dis])03e  of  their 
lands,  without  limitation  as  to  objects,  unless  restrained  by 
the  act  of  incorporation,  or  by  statute;  and  the  power  to  mort- 
gage, when  not  expressly  given  or  denied,  will  be  regarded  as 
an  incident  to  the  power  to  acquire  and  hold  real  estate,  and 
to  make  contracts  concerning  same.'  In  general  they  convey 
their  lands  in  the  ^ame  manner  as  individuals,  the  laws  relat- 
ing to  the  transfer  of  property  being  equally  applicable  to 
botli,^  and  the  only  features  that  particularly  distinguish  this 
class  of  conveyances  from  individual  deeds  are  in  the  execu- 
tion and  acknowledgment.  The  orderly  parts  of  the  deed  fol- 
low closely  the  ordinary  deeds  in  comnion  use,  the  full  name 
of  the  corporation  appearing  in  the  premises  as  the  grantor, 
while  the  body  of  the  deed  frequently  contains  a  recital  show- 
ing the  inducement  of  the  instrument  and  the  authority  of  its 
issuance.  The  execution  is  now  usually  regulated  by  express 
statute,  providing  for  a  specific  method  of  signing  and  sealing 
and  sometimes  fur  acknowledgment  as  well.  The  seal  is  usu- 
ally indispensable  to  a  perfect  execution  and  its  absence  is  a 
defect  that  calls  for  notice.  "A  corporation,"  says  Blackstone, 
"being  an  invisible  body,  can  not  manifest  its  intentions  by 
any  personal  act  or  oral  discourse;  it  therefore  acts  and  speaks 
only  by  its  common  seal.  For,  though  the  particular  mem- 
bers ma}'^  express  their  private  consents  to  any  act,  by  words 
or  signing  their  names,  yet  this  does  not  bind  the  corporation; 
it  is  the  fixing  of  tlie  seal,  and  that  only,  which  unites  the 
several  assents  of  the  individuals  who  compose  the  commu- 
nity, and  makes  one  joint  assent  of  the  whole." '  This  is  now 
true,  however,  only  in  a  very  limited  sense,  as  corporations  do 
contract  by  pruper  officers  without  the  use  of  the  seal,  but  in 
the  conveyance  of  land  the  rule  is  still  maintained,  and  the 
seal  must  be  the  common  seal  of  the  body,  either  originally 

Kelly  V.  Transportation  Co.,  o  Orog.       80  111.  263. 

189.  2  x^„  &  Ames  on  Corp.  §  193. 

^Agricultural  Society  v.  Paddock,  ^1  131.  Com.  475. 


231 


ABSTRACTS    OF    TITLE. 


or  by  adoption,  and  must  be  affixed  by  competent  autbority,' 
Wliatever  light  the  instrument  sheds  upon  itself  by  way  of 
recital  or  otherwise  should  always  be  stated,  either  literally  or 
with  little  deviation  from  the  original,  the  literal  transcrip- 
tions being  indicated  by  quotation  marks.  liere  follows  an 
example  of  an  abstract  of  a  simjjle  deed  by  a  corporation: 


South  Park  Commissioners^^ 
a  puhlio  corporation  exist- 
ing tinder  and  hy  i^ilrtue  of 
the  laws  of  Illinois, 

to 

William  Thomas. 
Doc.  128,^88. 


Quitclaim'  deed. 
Dated  Aug.  i,  1880. 
Recorded  Aug.  10,  1880. 
Book  l'-20,  page  51^0. 
Consideration  %  100. 00. 
Conveys  and  quitclaims  all 
interest  said  corporation  ac- 
quired   or    derived    under, 
through.,  or  hy  virtue  of  a  cer- 
tain tax  sale  deed  to  said  corporation  by  the  County  Clerk  of 
Cook  County,  Illinois,  dated  June  1,  1879,  and  recorded  in 
Book  85  of  Records,  page  61fi,  in  and  to  the  following  de- 
scriljed   real  estate,  situated   in   said  Cook  County,  to  vnt: 
\_H ere  follows  the  description?^     Said  interest  acquired  heing 
a  tax  claim  covering  the  1st,  '2d,  3d,  Ipth,  5th,  6th,  7th  arid  8th 
installments  of  the  South  Park  Special  Assessment. 

"  In  witness  whereof,  said  corporation  hath  caused  this 
indenture  to  he  signed  hy  its  President  and  attested  hy  its 
Secretary,  and  its  official  seal  to  be  hereto  affixed.''^ 


Signed: 

"  J.  R.  WALSH,  President. 
Attest: 

«  R.  W.  HARMON,  Secretary:' 


'Jackson  v.  Campbell,  5  Wend. 
572.  The  seal  is  itself  prima  facie 
evidence  that  it  was  affixed  by 
proper  authority:  Solomon's  Lodge 
V.   Montmallin,  58   Ga.    547;    Ang. 


&  A.  on  Corp.  §  224;  1  Kyd  on  Corp. 
268;  Bank  v.  Kortright,  22  Wend. 
348;  Reed  v.  Bradley,  17  111.321; 
Flint  V.  Clinton  Co.,  12  N.  H.   434. 


INDIVIDUAL    CONVEYANCES.  235 

AcIc7ioidI  edged  hy  said  President  and  Secretary  as  the  free 
and,  voluntary  act  of  said  South  Parh  Commisfsionevs. 

Certificate  of  achnoicledfjment  dated  Aurj.  7,  ISSO. 

§  17.  Continued — Execution — Acknowledgment.  In  tlie 
preceding  example,  it  will  be  observed  that  the  execution  and 
accompanying  recitals  are  quoted,  and  this  practice  is  recom- 
mended as  being  conducive  of  greater  certainty,  and  as  pre- 
senting an  answer  to  every  question  that  can  arise.  The 
mode  of  execution  of  corporate  conveyances  is  usually  pre- 
scribed by  statute,  and  ordinarily  consists  of  the  signature  of 
the  president  or  corresponding  officer  who  subscribes  as  such 
officer,  and  the  affixing  of  the  corporate  seal.  In  addition  to 
this,  even  when  not  required  by  statute,  it  is  customary  for 
the  secretary  or  person  having  the  custody  of  the  seal  to  attest 
same  under  his  hand.  Whatever  may  be  tlie  law,  a  full  ex- 
emplilication  of  the  execution  will  present  all  tlie  questions 
that  can  arise  under  it.  The  seal,  when  shown  of  record, 
sliould  be  copied  or  described,  and  its  absence  specifically 
noted  as  a  serious  defect.  The  seal  of  a  corporation,  when 
affixed  to  any  deed  or  conti-act  by  proper  authority,  is  not  dis- 
tinguishable in  its  legal  effect  from  that  of  an  individual,  and 
renders  the  instrument  a  specialty.'  It  is  the  highest  evidence 
of  assent,  and  was  formei-ly  the  only  requisite  necessary  to 
bind  the  corporation.  In  a  few  of  the  States,  the  deed  must 
be  signed  with  the  name  as  well  as  sealed  with  the  seal  of  the 
corporation.^  Where  the  execution  conforms  to  the  law  of  the 
State  where  the  land  conveyed  is  situate,  no  questions  will 
probably  arise.  Where  it  does  not  so  conform,  recourse  must 
be  had  by  counsel,  in  the  absence  of  other  evidences  of  con- 
formit}^  to  the  law  of  the  State  where  the  conv^eyauce  was 
executed,  or  where  the  "  home  office"  is  located.  Appended 
matter,  showing  authority,  conformity,  etc.,  should,  as  a  rule, 

^  Clark  V.  Manf.  Co.  of  Benton,  15  can  onlj-be  established  by  resolution 

Wend.  256;  Benoist  v.   Carondelet,  of  the  directors  or  trustees  entered 

8   Mo.  250.     In  the  absence  of  the  in   the  proper  book  of  the  corpora- 

conmion  seal,  or  of   proof  of    facts  tion:     Southern  Cal.  Colony  Assc.  v. 

whence  the  authority  of  the  officers  Bustaraente,  52  Cal.  192. 

of  a  corporation  to  execute  a  convey-  ^  Isham  v.   Bennington   L-on  Co., 

ance  may  be  inferred,  such  authority  19  Vt.  251. 


236 


AUSTRACTS    OF    TITLE. 


be  fully  presented.  Where  several  officers  sii^n,  an  acknowl- 
edgment by  one  only  in  behalf  of  the  corporation  is  sufficient.' 
In  the  absence  of  statutory  provisions  to  the  contrary,  where 
a  deed,  puri)orting  to  be  the  deed  of  the  corporation,  is  signed 
by  its  officers,  as  such  officers,  and  has  the  corporate  seal 
affixed,  it  is  admissible  in  evidence  as  a  deed  of  the  corpora- 
tion, and  is  itself  presumptive  evidence  of  the  regular  and 
duly  authorized  execution  of  same.*  The  following  is  a  good 
example  of  an  abstract  of  execution,  acknowledgment,  and 
appendant  matter  : 

"  In  witness  whereof,  the  said  Union  Mutual  Life  Insur- 
ance Company  hath  caused  its  Corporate  Seal  to  he  hereunto 
affixed,  and  these  presents  to  he  subscribed,  by  John  E. 
DeWitt,  its  President,  duly  authorized  by  vote  of  the 
finance  Committee  of  the  Board  of  Directors  of  said  Cor- 
poration^ a  certificate  of  lohich  is  hereto  attached,^''  etc. 


Signed: 

"  UNION'  MUTUAL   LIFE   IN 
SUBANCE  C 031  P ANY, 

''By  JOHN  E.  DeWITT, 

Presidenty 


Aclcnowledged  by  said  President  as  his  free  and  voluntary 
act  and  deed,  and  as  the  act  and  deed  of  said  Companxj. 


'  Merrill  v.  Montgomer}^  25  Micli. 
73.  "  The  officer  of  the  corporation 
intrusted  with  its  common  seal,  and 
who  subscribes  his  name  to  the  deed 
as  the  evidence  that  he  is  the  person 
who  has  afhxed  the  common  seal  to 
the  same,  stands  also  in  the  character 
oi'  a  subscribincr  witness  to  the  execu- 
tion of  the  deed  by  the  coiporation; 
and  may  be  examined  by  the  officer 
taking  the  proof  to  prove  that  the 
seal   affixed  by  him  is  the  common 


seal  of  the  corporation,  whose  deed 
the  conveyance  or  instrument  to 
which  it  is  affixed  purports  to  be  ": 
Willard's  Conveyancing,  893;  Lovett 
V.  Steam  Mill  Association,  6  Paige, 
60;  Johnson  v.  Bush,  3  Barb.  Ch. 
207. 

2  Miners'  Difch  Co.  v.  Zellerbach, 
37  Cal.  543;  Sawyer  v.  Cox,  63  111. 
130;  Solomon's  Lodge  v.  Montmal- 
lin,  68  Ga.  5-17. 

^  A  purchaser  of  laud   from  a  cor- 


IXDIVIDUAL    COXVEYAXCES. 


237 


Certificate  of  ach}iowlelj)mnt  date'!  Aicjust  10,  1SS3, 

APPENDED     IS 

Extract  from  Article  9  of  the  By-Laws  of  the  Union  Mutual 
Life  Insurance  Company: 

"  The  Finance  Committee  may  authorize  the  foreclosure 
of  mortgages  in  any  tnanner  jprovided  hy  the  laws  of  the 
State  or  country  in  which  the  mortgage  property  is  situated, 
and  may  direct  the  sale  of  any  real  estate  held  ly  the  Com- 
2)any,  or  in  trust  for  the  Company ,'  and  when  they  shall 
direct  any  such  sale  of  property  held  hy  the  Company,  the 
President,  and  in  his  absence  the  Vice  President,  is  author- 
ized to  execute  the  proper  instrument  of  conveyance.'''' 


Attest: 


JAMES  SlM310]SrS, 

Secretary 


At  a  meeting  of  the  Finance  Committee  of  the  Board  of 
Directors  of  the  Union  Mutual  Life  Insurance  Company, 
held  on  August  10,  1883,  the  foregoing  Deed  was  approved-, 
and  the  President  directed  to  execute,  aclcnowledge  and 
deliver  the  same. 

Attest:  JAMES  SIMMONS, 

Secretary  of  the  Finance  Committee. 

§  18.     Record  of  Seal.     In   all   the  examples  given  in  this 


poration,  being  a  stranger  to  the 
corporation,  is  not  bound  to  know 
that  there  is  a  by-law  of  the  com- 
pany requiring  an  order  of  the 
board  of  directors  to  authoriz^^  a  sale 
of  land  owned  by  the  company.  The 
rule  is  the  same  where  a  purchnser 
receives  a  bond  from  a  corporation 


for  a  deed  for  land  purchased,  and 
he  will  be  entitled  to  the  deed  ac- 
cording to  tlie  provisions  of  the 
bond,  notwithstanding  there  was  no 
order  of  the  board  of  directors  au- 
thorizing the  sale:  Wait  t\  Smith, 
92111.385. 


238  ABSTRACTS   OF    TITLE. 

chapter,  tlic  seals  liave  been  shown  as  they  were  appended  to 
the  ori<^inal  instrninents,  but  not  infrequently  tlie  defects  of 
the  record  will  render  this  impossible.  AVhere  the  seal  has 
not  been  recorded,  but  only  alluded  to,  the  suggestion,  as 
made  upon  the  record,  should  be  shown  as  it  appears  ;  thus, 
"  Seal  is  recorded,  '  Corporate  Seal,' "  or  should  the  record 
merely  disclose  a  scrawl,  then  the  scrawl  may  be  shown  with 
accompanying  words,  if  any.  In  recording  an  instrument 
purporting  to  be  executed  by  a  corporation,  in  the  absence 
of  statutory  requirements  to  the  contrary,  the  corporate  seal, 
if  attached  thereto,  may,  it  seems,  be  represented  by  a  scrawl, 
?kfaG  simile  of  the  seal  or  device  not  being  absolutely  neces- 
sary.^ 

§  19.  Heirs  at  I  iW.  The  unsatisfactory  character  of  con- 
veyances purporting  to  be  made  by  the  heirs  at  law  of  a  de- 
ceased person  has  already  been  shown.  The  recital  in  a  deed 
that  the  parties  making  it  are  the  heirs  at  law  of  a  former 
owner,  is  no  evidence  of  the  fact  recited,  except  as  against  the 
parties  to  the  deed  and  their  privies,'''  and  where  tlie  abstract 
furnishes  no  information  other  than  that  contained  in  the  deed 
to  prove  the  character  of  the  parties,  death  of  the  ancestor, 
etc.,  a  requisition  should  always  be  made  by  counsel  for  further 
information,  which,  unless  a  probate  is  had,  usually  consists  of 
affidavits  in  support  of  the  facts,  made  by  persons  who  are 
supposed  to  be  cognizant  of  them.*  But  other  grave  questions 
may  arise  from  conveyances  in  derogation  of  the  rights  of  such 
heirs.  The  possession  of  land  by  a  person  at  the  time  of  his 
death  h  prima  facie  evidence  of  ownership  at  that  time, 
and  a  subsequent  purchaser  of  the  legal  title  will  be  conclu- 
sively presumed  to  know  that  whatever  rights  such  deceased 
person  had  in  the  land,  not  disposed  of  by  will  and  of  an  in- 
heritable character,  devolved  on  his  heirs,  and  his  possession 
being  constructive  notice  of  his  rights  at  the  time  of  his  death, 
it  becomes  the  duty  of  such  purchaser  to  make  all  necessary 
inquiries  to  ascertain  the  extent  of  the  interest  of  such  heirs.* 

'  I.  C.  R.  R.  Co.  V.  Johnson,  40      40  Ga.  479. 
111.  35.  3  See  "  Descents,"  wfra. 

2  Yahoola,  etc..  Mining  Co.  v.  Irby,  *The  above  rule  was  applied  in  a 


INDIVIDUAL    CONVEYANCES.  239 

§  20.  Post  Obit  Conveyances.  The  conveyance  by  an  heir 
apparent  of  his  expectancy  in  land  owned  by  his  living  an- 
cestor, which  would  descend  to  him  if  he  survived  his  ances- 
tor, and  the  latter  should  die  intestate  owning  the  same,  is  a 
conveyance  of  a  mere  naked  possibility  not  coupled  with  an 
interest  and  passes  no  estate  or  interest  in  the  land.  Such  a 
title  can  not  operate  to  defeat  the  grantor's  own  title  afterward 
acquired  by  descent,  except  bj'wayof  estoppel,  and  if  the  con- 
veyance contained  no  covenant  of  warranty,  such  grantor  is 
not  precluded  from  asserting  an  after- acquired  title.^  But 
where  a  conveyance  of  this  character  is  made  with  covenants 
of  warranty,  it  will  operate  to  pass  the  title  by  estoppel  if  the 
land  descends  to  the  heir.^ 

§  21.  Conveyances  by  Delegated  Authority.  Everv  deed 
executed  by  virtue  and  in  pursuance  of  a  power,  should  bear 
upon  its  face  a  recital  of  authority,  but  deeds  purporting  to 
be  the  direct  act  of  the  grantor  though  performed  by  an  at- 
torney in  fact  are  sufficiently  formal  if  the  execution  and  au- 
thentication affirmatively  show  the  fact.  The  description  of 
the  parties  grantor  should,  in  all  cases  of  delegated  authority, 
be  taken  from  the  execution  and  not  from  the  premises, 
which  as  a  rule,  does  not,  and  as  a  matter  of  form,  should  not 
show  the  vicarious  act.  The  recital  of  acknowledgment  should 
also  be  drawn  to  show  the  substitution  of  persons.  Aside 
from  these  two  points  the  abstract  of  a  deed  executed  by  an 
attorney  in  fact  diffi^^rs  in  no  material  respect  from  one  exe- 
cuted by  the  grantor  in  personam.  The  points  mentioned  may 
be  shown  in  this  manner: 

case  where  a  person  holding  a  bond  In  this  case  a  covenant  was  made  by 

for  a  deed  died,  and  his  widow  upon  an  heir  to  convey,  on  the  death  ot  his 

payment  of  the  sum  due  on  the  land,  ancestor  if  he  should  survive  him,  a 

procured  the  legal  title  to  be  made  certain  undivided  part  of  what  should 

to  her,  and  then  conveyed  same  to  a  come  to  him  by  descent,  and  same  was 

third  person,  who  had  notice  of  the  held  to  be  void  at  law  as  well  as  in 

equitable  title  of  the  heirs:  McVey  v,  equity. 

McQuality,  97  111.  93.  2  Rosenthal  v,  Mayhugh,  33  Ohio 

1  Hare  V.  Gregar,  32  Ohio  St.  502;  St.  158. 
Boynton  v.  Hubbard,    7  Mass.  112. 


240  ABSTRACTS    OF    TITLE 

John  Smith,  hj  William  ^        Warranty  Deed. 
Stro. 
fact, 


Strong,  his  attorney   in   \       Dated,  etc. 

'  ^  ^  ^  ^  7^ 


to 
James  ItoVinson. 


*         *         *         •» 


Achnowledged  June  1,  1882,  hy  William  Strong,  as  the 
act  and  deed  of  said  John  Smith. 

Erroneous  or  imperfect  execution  or  acknowlecli>:ment  must 
be  indicated  in  the  manner  already  pointed  out.  The  instru- 
ment is  properly  and  leo;ally  executed  if  it  bears  the  name 
(signature)  and  seal  of  tlie  grantor  sliowing  the  procurement 
of  the  attorney,  and  purporting  to  be  the  act  of  the  principal; 
but  in  making  the  acknowledgment,  the  attorney,  being  the 
person  who  executes  the  instrument,  must  acknowledge  it; 
yet  this  he  does  as  and  for  his  principal.  As  to  what  consti- 
tutes a  proper  signing  there  is  some  conflict  of  authorit3\  the 
earlier  cases  holding  it  to  be  immaterial  whether  the  attorney 
sign  "A,  attorney  for  B,"  or  "  B,  by  his  attorney  A,"  '  on  the 
theory  that  no  particular  form  of  words  is  necessary  to  bind 
the  principal,  provided  the  agency  of  the  attorney  appears 
from  the  deed  itself.^  It  is  now  well  established,  however, 
that  a  conveyance  made  by  an  attorney  must  be  in  the  name 
of  the  principal,  and  purport  to  be  executed  by  him,^  and 
where  the  agent  assumes  either  to  grant  or  to  execute,  as 
where  he  signs  and  seals,  although  describing  his  office,  the 
deed  will  be  void  as  to  the  principal.*  It  has  also  been  held 
that  signing  the  principal's  name,  but  making  no  mention  of 
the  attorney,  is  not  a  valid  execution.*  It  would  seem,  there- 
fore, that  in  all  conveyances  by  attorneys  in  fact,  both  the 
name  of  the  principal  and  of  the  attorney  must  substantially 
appear  in   the  execution  of  the  deed,  showing  not  only  that 

1  Jones  V.   Carter,  4  Hen.   &  M.  15;  Elwell  w .  Shaw,  16  Mass.  42. 

184;   Montgomery  v.   Dorion,  7   N.  ^Fowler  v.   Shearer,  7  Mass.  14; 

H.  475;    Wilkes  v.   Back,   2  East,  State  v.  Jennings,  10  Ark.  428;   Mc- 

142.  Donald  v.  Bear  River  Co.,  18  Cal. 

^  Magill  ».  Hinsdale,  6  Conn.  464;  235;     Townshend    v.    Corning,    23 

WorraU  v.  Munn,  1  Seld.  229.  Wend.  439. 

^Pensonneau  v.  Bleakley,    14  111.  *  Wood  v.  Goodridge,  6  Cush.  117. 


INDIVIDUAL    COXVEYANCES.  241 

tlie  gvarifc  and  seal  are  those  of  the  principal,  but  by  whom 
these  acts  are  done;'  and  where  there  are  two  grantors,  and 
one  of  them  acts  as  the  attorney  in  fact  of  the  other,  he  must 
subscribe  his  name  twice,  once  as  attorney  in  fsxct  for  the 
other,  and  once  for  himself.  One  signature  and  a  second 
seal  is  not  equal  to  a  second  subscription.'' 

§  22,     Powers    of   Attorney,     Immediately   following   the 
abstract  of  every  deed  purporting  to  be  made  by  the  procure- 
ment of  an  attorney  in  fact,  should  appear  the  warrant  or 
power  which  authorized  the  act;  for  an   unauthorized  deed 
would  be  void  for  all  purposes,  and  the  proof  of  this  power 
can  only  be  shown  by  an  instrument  executed  with  all  the 
formalities   necessary  to  a  valid  deed  of  conveyance,'     The 
instrument  usually  recites  the  scope  of  the  attorney's  powers, 
yet  even  where  it  is  deficient  in  some  particular,  others,  which 
are  necessary  to  the  proper  exercise  of  those  expressly  enu- 
merated, will  be  implied  as  incidental   thereto;  as,  where  a 
power  is  expressly  given  to  sell  or  lease  the  property  of  the 
principal,  a  power  to  contract  to  sell,  as  well  as  to  convey  and 
transfer,  will  be  implied.*     Tiie  right  of  revocation  is,  as  a 
rule,  always  reserved,  but  this  is  a  right  incident  to  the  power 
given,  and  a  principal  may  always  revoke  the  authority  of  his 
agent  at  his  mere  pleasure  without  a  reservation  of  such  ex- 
press  right,  or  even    though    the   power  may  be   exj^ressly 
declared  to  be  irrevocable.^     The  only  exceptions  to  this  rule 
are  when  the  authority  or  power  is  coupled  with  an  interest, 
or  where  it  is  given  for  a  valuable  consideration,  or  where  it 
is  part  of  a  security,  in  all  of  which  cases  it  is  irrevocable, 
whether  so  expressed  or  not.®     Powers  of  attorney  must  be 
strictly  construed,  yet  the  rule  does  not  require  a  construction 
that  will  defeat   the   manifest  intention  of  the    parties,  and 

iSee  3  Wash.  Real  Prop.  *573,      444. 
and  cases  cited.  ^  Walker  v.  Denison,  86   111.  142; 

2  Meagher  V.  Thompson,  49  Cal.       Brown  ?-\  Pforr,  38  Cal.  550. 

189.  « Walker  v.  Denison,  86  111.  142; 

3  Fire  Ins.  Co.  v.  Doll,  35  Md.  89;      Gilbert  r.  Holmes,  64  111.  648;  Browu 
Watson  V.  Sherman,  84  111.  263.  v.  Pforr,  38  Cal.  550. 

*  Herastreet    v.   Burdick,    90    111. 
16 


2-12  ABSTRACTS    OF    TITLE. 

where  such  intention  fairly  appears  from  the  lan^nap^e  used 
it  must  prevail,^  but  the  authority  can  not  be  extended  be- 
yond that  which  is  clearly  given  in  terms,  or  which  is  neces- 
sary and  proper  for  carrying  the  authority  given  into  full  ex- 
ecution.^ In  this  respect  there  is  a  marked  difference  as 
compared  with  powers  of  appointment  created  by  deeds  and 
wills,  and  powers  introduced  in  connection  with  uses.  The 
formal  requisites  to  be  observed,  apart  from  such  as  are  inci- 
dent to  all  other  sealed  instruments,  are  the  constituent  words, 
which  are  "  make,  constitute  and  appoint  "  the  powers  dele- 
gated, and  if  desired,  the  reservation  of  the  right  of  revoca- 
tion, and  the  power  of  substitution,  if  any  is  given.  The  re- 
cital of  the  power  always  calls  for  minuteness  in  transcrip- 
tion, particularly  when  coupled  with  an  interest  or  created 
upon  a  valuable  consideration,  and,  as  a  rule,  should  be  ren- 
dered with  literal  fidelity.  The  arrangement  of  the  synopsis 
follows  the  instrument.     An  example  is  appended: 


John  Smith 

To 

William,  Strong. 


Power  of  Attorney. 
Dated,  etc. 


First  party  malces,  constitutes  and  appoints  second  party 
his  true  and  lav  fid  attorney,  for  him  and  in  his  nam^e,  place 
and  stead,  to  \Iiere  follows  the  special  purpose  of  the  power, 
literally  rendered.'] 

Full  poioer  of  substitution  and  revocation. 

Achnowledged,  etc. 

§  23.  Revocations.  The  recall  of  a  power  or  authority 
conferred,  or  the  vacating  of  an  instrument  previously  made, 
is  called  a  revocation.^  A  power  of  attorney  may  be  revoked 
in  a  variety  of  ways;  as  by  the  death  of  the  principal,  which 
operates  as  a  revocation  of  every  power  imcoupled  with  an 
interest;*  the  marriage  of  the  principal,  the  power  liaving 
been  given  while  he  was  a  single  man;^  a  conveyance  by  the 

1  Hemstreet  v.  Burdick,  90  III.  44-4.  *  Clayton  v.  Merrett,  52  IVfiss.  353; 

2 Pool  I'.  Potter,  63  111.  533.  Davis  v.  Savings  Bank,  46  Vt.  728. 

3  2  Bou.  Law  Diet.  477.  »  Henderson  v.  Ford,  46  Tex.  627, 


INDIVIDUAL  CONVEYANCES.  243 

principal  of  the  sul)ject-matter  of  tlie  power  before  tlie  agent 
has  had  an  opportunity  to  dispose  of  it/  But  the  giving  of 
a  second  power  to  another  agent  without  specially  revoking 
the  first,  would  not  act  as  a  revocation,  and  if  either  power  is 
executed  both  will  be  exhausted.^  In  the  foregoing  instances 
the  revocation  occurs  by  operation  of  law.  The  principal 
may  revoke  by  a  special  instrument  of  revocation,  which, 
when  recorded  with  the  power,  will  operate  as  constructive 
notice  of  such  fact.  An  unexercised  power,  followed  by  rev- 
ocation, sheds  no  light  on  the  title,  and  may  with  propriety 
be  disregarded,  but  if  it  should  be  deemed  desirable  to  show 
same,  a  brief  mention  among  the  appendices  would  seem  to 
be  all  that  is  required. 

§  24.  Substitution.  It  is  a  cardinal  rule  that  a  delegated 
power  can  not  be  delegated,  but  in  its  application  to  powers 
of  attorney  it  is  somewhat  restricted,  as  when  the  instrument 
contains  a  special  power  of  substitution  the  power  conferred 
may  be,  and  often  is,  delegated  to  another.* 

§  25.  Conveyances  in  Trust.  Trust  deeds  were  formerl}^ 
of  very  common  occurrence,  but  are  now  rarely  met  with, 
save  in  a  few  States  where  mortgages  are  made  in  that  form. 
They  were  used  to  convey  the  beneficial  interest  to  persons 
who  were  incapable  of  holding  the  legal  title,  or  in  whom  it 
was  not  desirable  to  have  the  legal  title  vest.  AVith  the  grad- 
ual disuse  of  uses  and  trusts  in  some  States,  and  their  sum- 
mary abolition  in  others,  conveyances  of  this  character  have 
become  infrequent,  while  no  estate  or  interest,  legal  or  equi- 
table, will  vest  in  the  trustee  under  the  statutes  of  many  of 
the  States,  but  the  beneficiary  takes  the  entire  legal  estate  of 
the  same  quality  and  duration,  and  subject  to  the  same  con- 
ditions as  his  beneficial  interest.*     When  conveyances  in  trust 

1  Walker  r.  Denison,  86  111.  142.  1.     To  sell  lands  for  the  benefit  of 

^Cushman  v.  Glover,  11  111.  GOO.  creditors. 

*  Story  A g-.  §  13.  2.    To  sell,    mortgage,    or  lease 

*  This  applies  more  particularly  lands  for  the  benefit  of  legatees,  or 
to  "dry  "or  passive  trusts.  Ex-  for  the  purpose  of  satisfying  any 
press  trusts  are   still   generally  per-  charge  thereon. 

mitted  to  be  created  for  the  follow-  3.     To  receive  the  rents  and  profits 

ing  purposes;  of  lands  and  apply  them  to  the  use 


24:i  ABSTRACTS    OF    TITLE. 

are  allowed,  tlie  nature,  quality,  and  extent  of  the  trust  should 
be  very  explicitly  stated;  while  in  States  wdiere  only  a  few 
enumerated  express  trusts  are  recognized,  every  part  of  the 
instrument  necessary  to  bring  it  within  one  of  the  classes 
named  in  the  statute  must  be  shown.  The  trust  is  ordinarily 
sufficiently  disclosed  by  the  recitals  of  the  habendum,  but 
where  there  is  a  power  of  appointment,  and  certain  reserva- 
tions for  various  purposes,  a  very  full  synopsis  of  every  part  of 
the  deed  will  be  absolutely  necessary  for  a  proper  understand- 
ing of  it.  In  the  latter  case  there  should  be  shown  the  spe- 
cial matter  of  inducement  as  recited  in  the  premises;  the 
grant;  the  habendum;  the  reservation,  explicitly  rendered; 
the  enumeration  of  the  trusts  and  powers,  and  the  power  of 
appointment,  or  successor  in  trust,  if  named.  No  particular 
form  of  words  is  requisite  to  create  a  trust,  the  intent  only  be- 
ing regarded  by  courts  of  equity,*  yet  the  habendum  usually 
makes  a  formal  recital  after  the  preliminary  words  "  to  have 
and  to  hold,"  etc.,  by  continuing,  "in  trust  nevertheless,"  or 
some  similar  expression.  Where  a  trust  is  intended  by  a  con- 
veyance, but  fails  entirely,  so  that  the  grantee  takes  no  estate 
in  the  land  under  the  conveyance,  it  may  nevertheless  create 
in  him  a  valid  power  in  trust,^  the  legal  title  remaining  in 
the  grantor.^     Where  the  deed  creates  a  valid  trust,  the  entire 

of  any  person  during  the  life  of  m^nt  creating-  it,  subject  to  the  limi- 
such  person,  or  for  any  shorter  term,  tations,  as  to  the  time  and  the  ex- 
subject  to  the  rules  prescribed  by  ceptions  thereto,  relating  to  literary 
statute  fixing  the  quantity  and  dura-  and  charitable  corporations,  pre- 
tion  of  estates.  scr.bed  by  the  statute. 

4.  I'o  receive  the  rents  and  profits  Trusts  resulting  from  implication 
of  lands  and  to  accumulate  the  same  of  law  are  always  recognized,  but 
for  the  benefit  of  any  married  worn-  the  doctrine  has  been  very  much 
an,  or  for  any  of  the  purposes  and  cii-cumscribed  as  described  in  the  pre- 
within  the  limits  of  the  statute  pre-  ceding  chapter. 

scribing  the  nature  and  quality   of  ^  Fisher  v.  Field,  10  Johns.  494. 

estates.  ^  Fellows  v.  Heermans,  4  Lans.  (X. 

5.  For  the  beneficial  interests  of      Y.)  230. 

any  person  or  persons,   when  such  ^  This  is  now  the  general  statutory 

trust  is  fully  expressed  and  clearly      doctrine, 
defined  upon  the  face  of  the  instru- 


INDIVIDUAL    CONVEYANCES.  2io 

estate  vests  in  the  trustee,  subject  only  to  the  execution  of  the 
trust,  except  as  otherwise  provided;  and  where  the  deed  gives 
a  power  of  sale  to  the  trustee  at  the  request  and  for  the  bene- 
fit of  the  beneficiary  under  the  deed,  no  power  of  revocation 
being  reserved,  no  estate  in  the  premises  is  left  in  the  grantor, 
which  is  capable  of  being  transferred.'  AVhere  the  legal  title 
is  vested  in  a  trustee,  nothing  short  of  reconveyance  can  place 
the  same  back  in  the  grantor  or  his  heirs,  but  under  certain 
circumstances  such  reconveyance  will  be  presumed  without 
direct  proof  of  the  fact."  Trust  estates  are  subject  to  the 
same  rules  as  legal  estates  in  every  case,  dower  excepted.' 

§  26.  Declaration  of  Trust.  To  establish  a  trust,  the  evi- 
dence must  all  be  in  writing,  and  sufficient  to  show  that 
there  is  a  trust,  and  what  it  is,*  and  where  land  lias  been  con- 
veyed by  a  deed  absolute  in  form  but  designed  simply  for  a 
habendum  in  trust,  the  grantee  may  make  a  valid  admis- 
sion of  the  trust  in  a  separate  instrument*  Such  instruments 
are  known  as  declarations  of  trust,  and,  unless  required  bv 
statute,  need  not  be  by  deed,  but  any  writing  subscribed  by 
the  trustee  will  be  sufficient  if  it  contain  the  requisite  evi- 
dence." Although  it  is  not  essential  that  the  writing  by  which 
the  trust  is   manifested  and  proven  should  be  in  any  particu- 

»  Marvin  v.  Smith,   46  N.  Y.   571 ;  Eng-Hsh  statute  of  29  Charlos  IT,  chap. 

Leonard  v.  Diamond,  31  Md.  5:»6.  3,  §  7,  it  was  enacted  "that  all  decla- 

^  Kirkland  w.  Cox,  94  111.   400,   re-  rations  or  creations  of  trust  or  confi- 

versinf^- 81  111.  11,  80  111.  67.  dence   of  any   lands,    tenements  or 

^Danforth   v.  Lowry,  3  Haywood  hereditaments,  shall  be  manifested  or 

(N.  C),  68.  proven  by  some  writing:,  signed  by 

*Cookr.  Barr,44N.  Y.  156;Steere  the  party  who  is  by  law  enabled  tod  e- 

V.  Steere,  5  Johns.  Ch.  355;  1  Green.  clare  such  trust,  or  by  his  last  will  in 

Cruise,  335.     But  this  docs  not  apply  writing,  or  else  they  shall  be  utterly 

to  resulting   trusts,    which  may  be  void  and  of  none  effect."     This  stat- 

established  by  parol:    Farisv.  Dunn,  ute  provided,  not  tor  the  creation  of 

7  Bush  (Ky.),  276;  McGinity  v.  Me-  trusts,  but  for  proving  them,  and  is 

Ginity,  63  Pa.  St.  38.  the  basis  of  American  statutes  on 

^  Elliott  V.  Armstrong,    2  Blackf.  the  same  subject.      Though  a  trust 

198;  McLaurier.  Partlow,  53II1.  340;  of  lands  can  not  be  establi.shed  by 

Cook  V.  Barr,  44  N.  Y.  156;  Fast  v.  parol,  yet  if  the  trustee  execute  the 

McPherson,   98  111.   496— or  by  the  trust,  be  is  bound  by  the  act:  Elliott 

pleadings  in  a  chancery  suit:    Ibid.  v.  Morris,  1  Harp.  Eq.  281. 

6  Cook  v.Bsa-r,  44  N.  Y.  156.  By  the 


210  ABSTRACTS    OF    TITLE. 

lar  form,  it  is  customary  for  tlie  trustee  to  declare  same  in  a 
formal  document,  reciting  the  matter  of  inducement,  declar- 
ing the  nature  of  the  trust  estate,  and  frerjuently  covenanting 
against  his  own  acts,  and  for  conveyance  to  the  beneficiary. 
Whatever  may  be  tlie  form  of  the  instrument,  the  nature  and 
quality  of  the  trust  declared,  and  the  terms  and  conditions 
upon  which  it  is  held,  should  sufficiently  appear  to  show  the 
full  intention  of  the  parties  as  manifested  by  the  instrument. 
An  illustration  is  herewith  given: 


Andrew  Baxter^ 
Trustee, 
to 
Whom,  it  may  concern: 


Declaration  of  Trust. 
Dated,  etc.     *     *     *     * 
Recites,  that    Charles  Den- 
ton., hy   deed   bearing  even 


date  herewith,  in  consideration  of  %  1,500. 00,  coni;eyed  to  said 
first  party  in  fee  sim2:)le  the  following  described  premises,  to 
wit:  [describing  same]  as  by  said  deed  will  more  fully  ap- 
pear. Arcd  that  said  first  party  has  '■'■this  day"  executed 
and  delivered  to  said  Charles  Denton  a  mortgage  upon  said 
premises,  as  collateral  security  for  the  payment  of  his  bond 
for  the  -payment  of  %1.000.00  [stating  the  terms']  being  part 
purchase  money  expressed  in  said  deed. 

Therefore,  said  first  painty,  makes  known,  and  declares, 
that  said  premises  so  conveyed  to  him,  he  now  holds  and  will 
continue  to  hold,  in  trust  only,  for  the  use  and  benefit  of 
George  Zeigler,  son  and  heir  at  law  of  Henry  Zeigler,  deceased, 
and  tJiat  he  has  no  beneficial  interest  therein,  except  what 
may  arise  by  legal  or  equitable  implication  from  the  circum- 
stances attending  the  execution  of  said  mortgage. 

Said  first  party  further  admits  that  the  residue  of  the 
consideration  money  expressed  in  said  deed  to  him,  to  wit: 
the  sum  of  %500  00,  was  paid  by  William  Zeighr,  for  the 
benefit  of  said  George  Zeigler. 

And  said  first  party  covenants  to  and  with  said  William 
Zeigler  and  George  Zeigler,  that  he  will  convey  said  premises 
by  '-'good  and  sujficient"  deed,  to  said  George  Zeigler,  or  his 
assigns,  as  he  or  they  may  direct,  whenever  and  as  soon  as  said 
mortgage  shall  Jiave  been,  paid  off  and  discharged,  or  other- 
wise fully  secured  to  said  first  party,  and  thatfree^  clear  and 


INDIVIDUAL    CONVEYANCES.  24:7 

discharged  from  all  and  every  inciunbrance   therein  hy  said 
first  2^arty. 

First  i^arty  further  covenants  against  his  own  acts. 

§  27.  Removal  or  Substitution  of  Trustees.  AVliere  a  tniS 
tee  is  dead,  the  trust  beino^  still  alive  and  unexecuted,  a  court 
of  equity  will  carry  it  out  it'necessary,  throuf^h  its  own  officers 
and  agents,*  and  may  appoint  a  new  trustee,^  and  it  seems  that 
in  some  States,  even  where  the  trust  deed  contains  a  power 
of  appointment,  in  the  event  of  the  death  of  the  trustee,  with- 
out executing  the  trust,  the  cestui  que  trust  can  not  appoint  a 
new  trustee,  but  the  exercise  of  this  right  devolves  exclusively 
on  a  court  of  chancery.^  A  trustee  may  always  be  removed  in 
the  discretion  of  the  court  upon  proper  cause  shown.* 

§  28.  Resignation — Refusal  to  Act.  A  trustee  Can  not 
divest  himself  of  the  obligation  to  perform  the  duties  of  his 
trust,  without  an  order  of  the  court,  or  the  consent  of  all  the 
cestuis  que  trust ^^  ^x\&  where  ho  refuses  to  act,  equity  will 
compel  him  to  do  so,  or  appoint  a  suitable  person  in  his 
place.* 

*  Batesville  Institute  v.  K  uffinan,  at  least,  as  to  prevent  an  abuse  of 

18  Wall.  120.     It  is  a  rule  in  equity,  discretion:     Bailey  v.  Bailey,  2  Del. 

that  a  trust  shall  never  fail  for  want  Ch.  95. 

of  a  trustee:     Buchan  v.   Hart,  ol  *  Atty.-Gen.  v.  Garrison,  101  Mass. 

Tex.  647.  223;  Ketchum  v.  R.  R.  Co.,  2  Woods, 

2  Curtis    V.   Smith.  60    Barb.    9;  532;    Scott  t;.  Rand,  118  Mass.  215. 

Hunter  v.  Vaug'han,  24  Gratt.  (Va.)  ^Thatcher  v.  Candee,  4  Abb.  App. 

400.  Dec.  (N.  Y.)  387. 

sQuion  V.  Pickett,   42  Miss.    77.  « Sargent  v.    Howe,  21   111.   148; 

As  a  general  rule,  a  court  of  chan-  Wilson  v.   Spring,   64  111.   14.      A 

eery  has  jurisdiction  to  control  the  successor  in  trust  is  usually  appointed 

exercise  of  the  power  of  appointment  in  a  trust  deed  in  case  of  the  inabil- 

when  vested  in  an  individual,  so  far,  ity  or  refusal  of  the  trustee  to  act. 


CHAPTER  XYII. 

OFFICIAL    CONVEYANCES. 


§  1. 

Dofined  and  distinguished. 

§14. 

Power  of   sale   and    trust  of 

2. 

Official  deeds  generally. 

sale  distinguished. 

3. 

Recitals. 

15. 

Trustees'  deeds. 

4. 

Covenants. 

16. 

Mortgagees'  deeds. 

5. 

Sheriff's  deed — On  execution. 

17. 

Executors     and     administra- 

6. 

Continued — Acknowledgment. 

tors. 

7. 

Continued — Operation,  effect. 

18. 

Executors'  deeds. 

8. 

Reformation. 

19. 

Administrators'  deeds. 

9. 

Statutory  sheriff's  deeds. 

20. 

Administrator  with  will    an- 

10. 

Sheriff's  deed — Under  decree. 

nexed. 

11. 

Masters',  commissioners',  and 

21. 

Guardians'  deeds. 

referees'  deeds. 

22. 

Trustees  can  not  become  pur- 

12. 

Trustees. 

chasers. 

13. 

Transfers  of  the  legal   estate 

23. 

C  ontinued — Exceptions     and 

by  trustees. 

qualifications  to  the  rule. 

§  1.  Defined  and  Distinguished.  Official  deeds  comprise 
all  those  conveyances  wherein  the  maker  acts  by  virtue  of  an 
office  and  not  in  his  individual  or  personal  capacity.  They 
cover  a  wide  portion  of  the  field  of  conveyancing  and  assume 
a  variety  of  shapes,  but  may  be  reduced  to  two  general  classes, 
viz.:  those  made  in  a  fiduciary  capacity,  as  the  deeds  of 
trustees,  executors,  administrators,  etc.;  and  those  made  in 
a  ministerial  character,  as  the  deeds  of  sheriffs,  commis- 
sioners, masters,  etc.^  The  rules  for  construing  deeds  are 
much  the  same,  wdiether  the  deed  be  made  by  a  party  in  his 
own  right,  or  by  a  fiduciary  or  officer  of  tlie  court.'' 

§  2.  Official  Deeds  Generally.  It  is  the  policy  of  the 
law  to  invest  the   sheriff",    master  in  chancer\%  administrator, 

^For  a  further  discussion  of  the      Proceedings,"  "  Judgments  and  De- 
subjects  of  this  chapter,  the  reader      crees."   and    "Probate  Proceedings 
is  refeiTcd  to  the  chapters,  "  Execu-      and  Descents." 
tion  and  Judicial  Sales,"  *'  Chancery  ^  White  v.  Lunmg,  93  U.  S.  515. 

(2iS) 


OFFICIAL    CONVEVANCES.  249 

etc.,  in  making  sales  of  real  estate,  witli  onl)'-  a  mere  naked 
yjower  to  sell  such  title  as  the  debtor,  deceased  person,  etc.,  had, 
without  warranty,  or  any  terms,  except  those  imposed  by  law. 
Hence  a  ]Mircliaser  at  such  sales  takes  the  risk  of  the  title,  and 
the  validit}^  of  the  jiroceedings  under  which  the  sale  is  made.' 
The  power  to  sell  lands,  however  conferred,  must,  as  a  rule,  be 
strictly  pursued,  otherwise  the  sale  will  be  void  and  no  title 
will  pass,^  and  a  deed  which  shows  on  its  face  an  excess  of 
authority  in  the  officer  executing  it,  will  not  be  sufficient  to 
sustain  the  title  of  one  claiming  under  it.^  Greater  detail  is 
required  in  the  abstract  of  instruments  of  this  character, 
which  should  show  substantially  all  tlie  material  parts  of  the 
deed,  including  all  the  recitals  necess.uy  to  a  full  compliance 
with  the  law,  even  though  the  instrument  seems  at  times  to 
be  unreasonably  long;  though  a  judicious  condensation,  where 
the  full  spirit  of  the  original  is  retained,  may  be  observed  to 
good  purpose,  and  the  labor  of  examiner  and  counsel  be  per- 
ceptibly lightened. 

§  3.  Recitals.  It  is  customary,  and  in  many  cases  neces- 
sary, to  show  all  the  material  recitals  in  official  conveyances, 
though,  unless  the  form  is  prescribed  by  statute,  such  recitals 
are  regarded  only  as  inducement;^  but  where  prescribed  by 
statute  they  become  substance^  and  must  always  be  shown  or 
indicated  in  some  manner.  The  main  reason  why  such  recit- 
als should  be  shown,  arises  from  the  fact,  that  they  are  usually 
reo^arded  as  evidence  ao^ainst  the  o^rantee  and  those  claimiuir 
under  him,"  and  as  to  such  parties  are  conclusive.^     The  recit- 

^  Bishop  V.  O'Conner,  69  111.  4:)1.  mont  and  costs,  and  was  held  void 

2  King  V.  Whiton,   15  Wis.    684;  on  its  face. 

White  V.  Moses,  21  Cal.  44.  *  Leiand  v.  Wilson,  34  Tex.  79; 

»G.  B.  &  M.  C.  Co.   r.  Groat,  24  Foulk  v.  Coburn,  48  Mo.  225;  War- 

Wis.  210;   French  v.   Edwards,   13  ner  v.  Sharp,  53  Mo.  598;  Jones  v. 

Wall.  506.     The  deed  in  this  case  Scott,  71  N.  C.  192.     A  clerical  error 

was  by  a  sheriff  under  a  judgment  in  the  recitals  is  not  to  be  regarded 

for  taxes.     The  deed  recited  the  sale  in  equity:  Stow  v.  Steele,  45  III.  328. 

of  the  property  to  the  highest  bidder,  ^  Atkins  v.  Kinman,  20  Wend.  249. 

when   he   was     authorized    by    the  ®  French  v.  Ktlwards,  1:{  Wall.  506; 

statute  only    to    sell    the    sniallcst  Fisk  v.  F.ores,  43  Tex.  340;   Lamar 

quantity  of  the  property  which  any  v.  Turner,  48  Ga.  329. 

one  would  takj  and  pay   thejiulg-  '  Durette  t'.  Briggs,  47  Mo.  356; 


250  ABSTKACTS   OF    TITLE. 

als  are  further  rc<]:;artl6d  as  presumptive  evidence  of  tlie  facts 
stated,*  and  will  prevail  until  the  contrary  is  shown.  These 
remarks,  liowever,  have  reference  more  to  ministerial  officers 
than  to  fiduciaries.  The  recitals  in  the  deeds  of  the  latter  are 
material  to  show  a  due  execution  of  the  powers  given. 

§  4.  Covenants,  There  are  no  implied  covenants  in  offi- 
cial deeds,^  and  where  the  deed  contains  express  covenants 
they  have  been  held  to  bind  the  officer  personall3\^  Some- 
times the  deed  will  contain  what  is  known  as  the  "  trustee 
covenant,"  which  is  to  tiie  effect  that  the  vendor  has  done  no 
act  to  encumber  the  estate. 

§  5.  Sheriff's  Deed — On  Execution.  A  sheriff's  deed 
made  in  pursuance  ot  a  sale  on  execution  must  be  to  the  per- 
son to  whom  the  certificate  of  purchase  was  issued  or  to  his 
assignee,  and  if  the  deed  is  made  to  another,  though  it  recites 
that  he  is  the  assignee  of  the  certificate,  it  is  a  nullity  if,  in 
fact,  the  certificate  was  not  assigned.*  It  would  seem,  there- 
fore, that  in  case  of  an  assignment  the  same  should  affirma- 
tively appear  of  record  or  its  absence  be  noted  as  a  substan- 
tial defect.  To  establish  a  title  to  land  under  a  sherifi''s  sale 
on  execution  all  that  is  necessary  to  be  shown  as  a  general 
rule,  is  a  valid  judgment,  or,  as  has  been  held,  a  judgment  by 
a  courtof  competent  jurisdiction,  no  matter  if  it  be  erroneous 
on  its  face;^  execution  duly  issued;  and  a  sheriff's  deed.*  But 
in  all  cases  the  judgment  is  the  foundation  of  the  title.''  As 
the  slierift'is  only  the  executor  of  a  naked  power  it  is  neces- 
sary that  tlie  deed  show  substantial  compliance  with  the  terms 
creating  the  power  as  well  as  its  proper  execution,  yet  the 
recitals  of  a  sheriff's  deed  are  to  be  regarded  only  as  indiice- 

Pringle  v.  Dunn,  37  Wis.  449;  Rob-  *  Carpenter  v.  Slierfy,  71  111.  427. 

ertson  v.  Guerin,  50  Tex.  317.  Compare  Bowman  v.  Davis,  39  Iowa, 

»  Chase  v.  Whiting,  30  Wis.  544.  398. 

2  Webster  v.  Conley,  49  III.  13.  ^  ^^^^  j,_  p^igy^  40  q^j^  28I. 

sProuty  V.  Mather,   49  Vt.  415;  « Riddle    v.    Bush,   27   Tex.  675; 

Sumner  v.  Williams,  8  Mass.  162;  Hughes t?.  Watt,  26  Ark.  228;  S pi ahn 

Mitchell  r.  Haven,  4  Conn.  485;  Aven  v.  Gillespie,  48   Ind.  397;  Lenox  r. 

V.  Beckom,   11  Ga.   1;   Craddoek  v.  Clarke,  52  Mo.  115. 

Stewart's  adm'r,  6  Ala.  77;   Magee  '  Atkins  v.  Hinman,  2  Gilm.  (111.) 

V.  Mellon,  23  Miss.  586.  437;  Leland  v.  Wilson,  34  Tex.  79. 


OFFICIAL    CONVEYANCES.  251 

ment,'  and  where  the  same  substantially  complies  with  the 
statutory  requirements,  it  is  not  invalidated  by  ambiguous 
recitals  or  omissions  which  do  not  mislead.^  It  is  said  that 
the  statute  requiring  recitals  in  a  sheriff's  deed  was  not  in- 
tended to  make  deeds  void  which  do  not  contain  them,  but 
was  only  intended  to  make  the  recitals  evidence  of  the  facts 
recited;  and  when  such  recitals  are  full,  they  dispense  with 
the  necessity  of  introducing  the  judgment  and  execution  in 
evidence.  So  far  as  such  a  statute  requires  recitals  beyond 
what  are  necessary  to  show  the  authority  of  the  officer  to  sell, 
it  is  merely  directory,^  and  where  the  deed  discloses  sufficient 
to  show  the  authority  to  sell,  even  though  the  particular  judg- 
ment and  execution  be  not  recited,  so  long  as  it  appears  to  be 
by  virtue  of  a  judgment  and  execution,  the  sale  and  convey- 
ance will  be  valid,  if,  at  the  time  of  such  sale,  the  sheriff  had 
in  his  hands  a  valid  execution.*  Defects  of  form  are  leniently 
regarded,  and  the  instances  are  very  rare,  observes  Mr.  Free- 
man, "  in  which  a  deed,  issued  in  pursuance  of  an  execution  or 
chancery  sale,  is  void  for  errors,  defects,  or  mistakes  in  form." 
§  6.  Continued — Acknowledgment.  Unlike  voluntary  con- 
veyances between  individuals,  it  is  essential  to  the  validity  of 
a  sheriff's  deed,  for  land  sold  by  him  under  an  execution,  that 
it  should  have  been  legally  acknowledged.  The  property  is 
conveyed  against  the  will  of  the  judgment  debtor.  The  con- 
veyance is  not  his  act;  but  the  act  of  the  law;  and  the  law, 
when  acknowledgment  is  requisite,  must  be  strictly  complied 
with."  AVhere  the  acknowledgment  is  defective  the  deed  is 
not  aided  by  record.' 

'  LelancI  v.  Wilson,  34  Tex.  79.  a  seal  conveys  no  title:    Ifinsdale  r. 

2  Allen  V.  Sales,  06  Mo.  28;  Jones      Thornton,    74  N.  C.  167;  Kruse  v. 
V.  Scott,   71    N.    C.  192;   Loomis  v.       AVilson,  79  111.  233. 

Riley,  24  111.  307.  *  Hyan     v.    Carr,    46    Mo.    483  ; 

3  Clark  V.   Sawyer,  48   Cal.    133;       Adams  u.  Buchanan,  49  Mo.  64.  But 
Jordan  v.  Bradsliaw,  17  Ark.  106.  see  contra,  Stephenson  v  Thompson, 

*  Jones  V.    Scott,    71   N.    C.  192;  13  III.  186— where  it  is  held  that  the 

Clark  V.  Sawyer,  48  Cal.  l.'!3.  deed  may  be  proved  by  other  evi- 

5  Freeniiin  Void  Jud.   Sales,  §  4-'i.  dence,  and  though  unacknowledged 

The  deed,  however,  must  be  what  it  it  is  still  valid, 

purports  to  be,  hence  a  deed  lacking  ''  Samuels  v.  Shelton,  48  Mo.  444. 


252  ABSTRACTS    OF    TITLE. 

§  7.  Continued — Operation  and  Effect.  A  sheriff 's  deed 
\?>  prima  facie  evidence  that  the  grantee  liolds  all  the  title 
and  interest  in  the  land  that  was  held  by  the  judi^ment  debtor 
at  the  time  of  the  rendition  of  the  jndgtnent,  and  operates 
back,  bj  relation,  to  the  date  of  such  rendition  so  as  to  ex- 
tinguish all  rights  and  equities  in  and  to  the  premises  derived 
from  the  judgment  debtor  in  the  meantime.^  And  not  only  the 
entire  interest  of  the  judgment  debtor  passes  by  the  deed,  but 
also  such  covenants  of  title  as  run  with  the  land.^  If  made  to 
a  honafide  purchaser,  and  is  regular  in  itself,  it  is  effectual  as 
a  conveyance,  and  can  not  be  impeached  in  any  collateral  pro- 
ceeding for  mere  irregularity,  in  any  of  the  proceedings,  judg- 
ment, execution  or  return.* 

It  will  operate  against  the  judgment  debtor  by  estoppel,  and 
he  will  be  precluded  from  setting  up  an  outstanding  title  to 
avoid  the  sale  by  the  sheriff,  or  to  deny  the  title  thereby  ac- 
quired by  the  purchaser.* 

As  an  exception  to  this  rule,  it  has  been  held,  that  if,  after 
the  sale,  the  judgment  debtor  abandons  the  land,  and  af- 
terward returns  to  it,  and  is  sued  in  ejectment,  he  may  sliow 
an  outstanding  title,  provided  he  shows  that  he  has  taken  pos- 
session and  holds  under  it,  and  the  same  rule  a])plies  to  a  pur- 
chaser holding  under  the  judgment  debtor  or  defendant  in 
execution.*  The  recording  of  a  sheriff 's  deed  operates  as  con- 
structive notice  only  to  those  who  hold  or  claim  under  the 
judgment  defendant;  strangers,  and  those  claiming  under  an 
independent  or  hostile  title,  are  not  affected  thereby.® 

1  Shields    v.  Miller,    9  gKan.  390;  254;    Jackson  v.   Bush,    10  Johns. 

"White  V.  Davis,  50  Mo.    833  Fergu-  223;  Jackson  v.  Hajraman,  1  Wend, 

son  V.  Miles,  3  Gilm.  (111.)  358;  Mil-  502;  Gould  tJ.Hendrickson,  6  111.  599. 

ler  V.  Wilson,  32  Md.  297;    Kirk  v.  But  see  Kenyon  v.   Quinn,  41  Cal. 

Vanberg,  34  111.  440.  325,  where  it  is  held,    that  a  statu- 

^Whit  ng  V.  Butler,  29  Mich.  122;  tory  qirovision  to  the  effect  that  a 

White  «7.  Whitney,  3  Met.  81;  Leport  conveyance  of   land  in   fee  simple 

V.  Todd,  32  N.  J.  L.  124.  shall  convey  the  legal  estate  after- 

^Landetsr.  Brant,    10  How.  371;  ward  acquired  by  the  grantee,  has 

Draper  V.  Brypon,  17  Mo.    71;   Mau-  no   application  to  a  sheriff's  deed 

rior  V.  Coon,  16  Wis.  465,  made  under  execution  sale. 

*  Matney  v.  Graham,  59  Mo.  190;  *  Gould  v.  Hendrickson,  96  111.  599. 

Reid  r.  Heasley,   2  B.    Mon.  (Ky.)  *  Gardner  r.  Jaques,  42  Iowa,  577. 


OFFICIAL    CONVEYANCES.  253 

§  8.  Reformation.  The  only  remedy  for  a  false  descrip- 
tion in  a  sherifl^'s  deed  is  to  obtain  a  new  deed  in  the  court 
wlience  the  process  issued.  Equity  will  not  aid  the  imper- 
fect execution  of  a  statutory  power.'  "Where  the  deed  has 
been  lost  before  registration,  he  may,  it  seems,  execute  a  sub- 
stitute.^ 

§  9.  Statutory  Sheriff's  Deeds.  To  overcome  the  effect  of 
mis-recitals,  prevent  collateral  impeachment,  and  give  the 
full  desired  effect  of  conveyances  by  the  sheriff,  the  legislatures 
of  a  majority  of  the  States  have  prescribed  certain  forms  of 
official  deeds  and  declared  their  legal  effect.  As  in  case  of 
statutory  forms  of  deeds  between  individuals,  these  convey- 
ances contemplate  but  little  verbiage,  while  the  statute  sup- 
plies what  was  formerly  obtained  by  long  and  tedious  recitals. 
Sufficient  description  is  given  to  fully  identify  the  judgment, 
execution  and  sale  and  to  show  the  authority  of  the  officer, 
while  the  granting  portion  is  confined  to  the  fewest  legal 
essentials.  The  deed  is  in  itself  little  else  than  an  abstract, 
and  contains  very  little  that  must  not  also  be  shown  in  pre- 
senting a  sjmopsis  of  it.  The  example  which  follows  is  an 
abstract  of  the  form  now  in  use  in  Illinois,  but  which,  so  far 
as  the  observation  of  the  writer  has  gone,  differs  but  little 
from  those  now  employed  in  other  States. 


JSeth  Naneheft,  Sheriff  of  ~\       Sheriff  \ 
Cook  County^  III.  \       Dated,  e 


'*  Deed, 
etc. 

William  B.  Denton.        J  *        *        *        *        ^. 

Recites  that  whereas,  A.  B.  did,  at  the  May  term  of  the  Cir- 
cuit Court  of  Cook  County,  1880,  recover  a  judgment  against 
C.  D.for  the  sum  of  %  100. 00  and  costs  of  suit  ujpon  lohich 
an  execution  was  issued  dated  June  2,  1880,  directed  to  said 
sheriff  to  execute,  hy  virtue  of  lohich  the  said  sheriff  levied 
xijpon  the  premises  hereinafter  descrihed;   and  the  time  and 

^  Ware  v.  Johnson,   5')   Mo.  500.  was  held  that  this  subsequent  deed 

But  where  a  sheriff  executed  a  deed  would  relate  back  to  the  date  of  the 

at  the  proper  time,  but  omitted  to  first  one:    Kruse  v.  Wilson,   79  III. 

affix  a  seal  or   scrawl    thereto,  the  2.'?3. 

Buccessor  of  the  sheriff  executed  an-  ^  McMillan  v.   Edwards,  75  N.  C. 

other  deed  in  proper  form,    and  it  81. 


254.  ABSTRACTS    OF   TITLE. 

place  of  the  sale  thereof  having  heen  duly  advertised  accord- 
ing to  law,  the  same  were  struck  off  and  sold  to  WilUain  B. 
Denton^  he  heing  the  highest  and  hest  hidder  therefor. 

Therefore,  said  sheriff,  in  consideration  of  the  pt'^'^mises, 
conveys  to  said-  second  party  the  following  described  parcel 
of  land  [describing  the  sarne\ 

Aclcnowledgment. 

The  legal  effect  of  this  brief  deed,  as  declared  by  statute,  is 
to  convey  to  the  grantee  therein  named,  all  the  title,  estate, 
and  interest  of  the  person  against  whom  the  execution  Avas 
issued,  of  every  nature  and  kind,  in  and  to  the  premises 
thereby  conveyed,  but  implies  no  covenants  on  the  part  of 
the  officer  executing  same.  It  is  ^nrihev  prima  facie  evidence 
that  the  provisions  of  law  in  relation  to  the  sale  of  the  prop- 
erty for  which  it  is  given  were  complied  with;  and  in  case  of 
the  loss  or  destruction  of  the  record  of  the  judgment,  or  of 
the  execution  or  levy  thereon,  \%  prima  facie  evidence  of  the 
recovery  and  existence  of  the  judgment,  and  issuing  and  levy 
of  the  execution  as  therein  recited.^ 

§  10.  Sheriff's  Deed — Under  Decree.  Though  a  master, 
commissioner  or  referee  is  the  medium  through  which  a  court 
of  chancery  ordinarily  executes  its  decrees,  the  duty  not  infre- 
quently devolves  upon  the  sheriff  either  by  virtue  of  his  of- 
fice or  through  special  appointment.  While  acting  under  a 
decree  he  occupies  the  same  position  as  a  commissioner,  and 
is  but  a  ministerial  officer  of  the  court,  to  whom  lie  must 
make  report  of  his  acts  and  by  whom  they  must  be  confirmed 
before  conveyance  can  be  lawfully  made.  His  deed,  like  a 
master's,  recites  his  authority,  and  takes  effect  as  a  convey- 
ance in  the  same  manner.^ 

§  11.  Masters',  Commissioners',  and  Referees'  Deeds.  The 
conveyancesof  a  master  in  chancery,  commissioner  or  referee 
differ  in  no  material  respect  from  those  of  a  sheriff  acting  un- 
der a  decree,  the  power  exercised  being  the  same  in   all,  and 

iR.  S.  111.  1874,  Ch.  77.  the  chapter  on  "Execution  and  Ju- 

^See  the  remarks  relative  to  deeds      dicial  Sales." 
of  other  ministerial  officers,  and  also 


OFFICIAL    CONVEYANCES.  255 

tlie  principles  wliicli  govern  any  one  operating  with  equal 
force  upon  the  rest.  Like  the  sheriff,  their  deeds  are  with- 
out warranty,  or  any  terms,  except  those  imposed  by  hxw, 
and  they  convey  only  such  title  as  the  defendant  possessed. 
The  recitals  of  this  class  of  conveyances  are  usually  very  long 
and  verbose  and  should  be  judiciously  condensed  by  the  ex- 
aminer to  show  all  that  is  material  in  as  few  M'ords  as  pos- 
sible. The  special  formal  parts  relate  to  the  title  and  author- 
ity of  the  officer,  and  the  recitals  showing  a  due  compliance 
with  the  decree.  In  the  abstract  the  deed  follows  the  court 
proceedings  and  certificate  of  sale,  and  may  be  shown  briefly, 
as  follows: 

Henry  TF".  Bishop,  as  31  aster  ^  3Iasfer\9  Deed. 

in  Chancery  of  the  Circuit  |  Dated  J^une  10,  1S8L 

Court  of  the  United  States  1  Recorded,  Jtdy  1'2,  1881. 

for  the  Northern  District  !  Book  J^,10,j)(^(J^  (^5 


of  Illinois, 


V 


to 

Silas  Wegg,  Jr. 
Doc.  n%,36o. 


Sets  forth  that  inimrsuance 


of  a  decree  entered  March  13, 
1881,  hy  said  Court  in  a  cer- 
tain case  then  pending  there- 
in wherein  John  Doe  was 
Complainant,  and  Richard  Roe,  Defendant,  the  said  3fas- 
ter  duly  adi^ertised,  according  to  law,  the  premises  hereinafter 
descriljed,  for  sale  at puhlic  auction  to  the  highest  and  best 
bidder,  for  cash,  at  tioo  o^clock  P.  31.,  on'3Ionday,  June  1, 
1881,  at  the  north  door  of  the  TJ.  S.  Custom  House  and  Post 
Office,  in  the  City  of  Chicago,  Cook  County,  Illinois.  That 
at  the  time  and  place  so  as  aforesaid  appointed  for  said  sale, 
the  said  3f aster  attended  to  make  the  same,  and  offered  said 
premises  for  sale  at  public  auction,  to  the  highest  and  best 
bidder,  for  cash,  and  thereiipon  Silas  Wegg,  Jr.,  offered  and 
bid  therefor  $135.00,  and  that  being  the  highest  and  best  bid 
offered,  said  3f aster  accordingly  struck  off'  and  sold  to  said 
Silas  Wegg,  Jr.,  for  said  sum  of  money,  the  said  premises^ 
and  did  thereupon  sign,  seal  aixd  deliver  to  said  Silas  Wegg, 
Jr.,  the  usual  3laster''s  Certificate  therefor,  and  that  said 
premises  have  not  been  redeemed  from  said  sale.  Now,  there- 
fore^ in  consideration  of  the  premises  conveys  said  premises 


256  ABSTRACTS    OF    TITLE. 

described  as  follows,  to  wit:     {Ilere  follows  the  descr'iijtlon 
ofthe])ropeTty?[ 

Certificate  of  acknowledgment  dated  June  10,  1881. 

§  12.  Trustees.  A  trustee  is  defined  as  a  person  in  whom 
some  estate,  interest,  or  power  in  or  affecting  property  of  any 
description  is  vested  for  the  benefit  of  another,'  and  though 
the  name  is  technically  applied  to  a  particular  class,  it  also, 
to  a  certain  extent,  comprises  executors,  administrators 
o-uardians,  assignees,  etc.  Where  the  legal  title  of  a  trustee 
is  created  by  the  owner  of  the  property,  the  right  of  the  trus- 
tee to  enforce  it  will  be  recognized  everywhere;  but  where, 
sucli  title  is  derived  solely  from  some  act  of  the  law,  the  ef- 
fect of  that  act  is  confined  to  the  territorial  jurisdiction  over 
which  the  law  extends.^  Upon  the  death  of  a  trustee,  the 
lewal  estate  devolves  upon  liis  heir  at  law;  and  the  heir  takes 
the  same  estate,  and  is  subject  to  exactly  the  same  duties  and 
responsibilities  as  his  ancestor.^  Being  founded  on  personal 
confidence,  it  necessarily  results  that  a  trustee  can  not  delegate 
his  trust  to  others,*  and  is  himself  responsible  for  the  acts  of 
all  his  subordinates  in  whatever  character  they  may  act.^  A 
trustee  can  not  profit  by  his  trust  estate,®  nor  become  a  pur- 
chaser at  any  sale  thereof  by  him,'  while  the  power  under 
which  he  acts  must  in  all  cases  be  strictly  pursued  to  render 

1  2  Bou.  Law  Diet.  616.  edge    of    the  trust,    or  where  such 

2  Curtis  V.  Smith,  6  Blackf.  (Ind.)  other  person  in  any  manner  acquires 
537.  the  legal  estate  with  such  knowledge, 

3  Watkins  v.  Sp:?cht,  7  Coldw.  he  holds  the  property  subject  to  the 
(Tenn.)  5^5;  McIVIuUen  r.  Lank,  4  trust  and  may  be  compeUed  in  equity 
Houst.  (Del.)  64:8.  By  force  of  the  to  execute  it:  Ryan  v.  Doyle,  31 
statute  the  trust  sometimes  vests  in  Iowa,  53;  Smith  v.  Walser,  49  Mo. 
some  tribunal  in  the  county  in  which  250. 

the  real  estate  is  situated,  which,  up-  ^  Moorecroft    v.    Dowding,    2  P. 

on  the  application  of  some  person  in-  Wms.  (Eng.  Ch.)  314. 

terested  in  the  trust,  forthwith  ap-  ^  Faucett  v.  Faucett,  1  Bush  (Ky.), 

points  a  successor  to  the  deceased  511. 

trustee,  whereupon  the  trust  vests  in  '  Terwelliger  v.  Brown,  44  N.  T. 

the  newly  appointed  trustee:  Collier  237.     This  is  the  universally  accept- 

r.  Blake,  14.  Kan.  250.  ed  doctrine,   but  is  subject  to  some 

*  But  where  the  trustee  conveys  qualifications,  the  law  not  exacting 

the  legal  title  to  one  having  knowl-  the  same  rigid  degree  of  strictness  in 


OFFICIAL    CONVEYANCES.  257 

Ill's  acts  valid.'  A  joint  power  of  sale  iiinst  be  executed  by- 
all,  provided  all  are  living  and  in  condition  to  act,^  unless  the 
instrninent  creating  the  trust  provides  otherwise,^  but  in  case 
of  the  death  of  one  or  more  of  the  trustees,  the  survivor  or 
survivors  will  hold  the  trusts  and  mav  execute  the  powers.* 

§  13.  Transfers  of  the  Legal  Estate  by  Trustees.  "The  pres- 
ent well-established  rule  of  law  in  regard  to  trust  estates  is,"  says 
Mr,  Redfield/  "  that  when  the  trustee  holds  the  trust  estate 
for  the  purpose  of  sale  and  conversion  into  money,  or  with  a 
power  of  sale  and  conversion,  any  one  who  in  good  faith  ac- 
cepts such  transfer  upon  adequate  compensation  will  acquire 
a  valid  title.  But  if  the  trustee  has  no  power  of  sale  the 
purchaser  will  acquire  no  title  unless  he  show  that  the  pur- 
chase money  has  been  applied  to  tlie  purposes  of  the  trust. 
It  is  this  which  marks  the  true  distinction  between  the  cases, 
where  the  purchaser  is  bound  to  see  to  the  application  of  tlie 
purchase  money  and  where  he  is  not.  For  if  the  trustee  has 
no  power  of  sale,  any  transfer  by  him  will  be  wholly  in- 
operative and  the  trust  will  attach  to  the  trust  property  in  the 
hands  of  the  vendee  the  same  as  in  the  hands  of  the  trus- 
tee, until  it  appears  that  the  money  paid  by  the  vendee, 
to  the  full  value  of  the  trust  property,  has  been  applied  to 
the  purposes  of  the  trust." 

§  14.  Power  of  Sale  and  Trust  of  Sale  distinguished. 
Under  testamentary  trusts  questions  of  title  are  frequently 
raised  on  the  construction  of  the  authority  under  which  the 
trustee  effected  the  sale,  but  the  same  questions  may  sometimes 
arise  under  deeds  of  trust.  "  The  more  common  case  of  trusts 
with  power  of  sale,"  observes  Mr.  Redfield,"  "  is  where  the 
testator  devises  his  estates  together  with  all  his  personalty, 
directing  that  the  latter  be  first  applied  in  the  payment  of 
debts  and  legacies;  and  in  default  of  it  proving  sufficient, 
that  the  real  estates  be  sold   by  the  trustees,  either  generally 

all  the  States :  Clark  v.  Clark,  65  N.  C.  « Gould  v.  Mather,  104  Mass.  283. 

655,  and  see  "Trustees  and  Agents  *  Lane  r.  D-ibenham,  11  Hare,  188, 

as  Purchasers,"  i7tfra.  *3  Redf.  on  Wills  (:kl  ed.),  620. 

1  Huntfc  V.  Townshend,  31  Md.  336.  '  3  Redf.  on  Wills  (3d  ed.),  551. 

2  Learned  v.  Weltou,  40  Cal.  349- 

17 


258  ABSTRACTS   OF   TITLE. 

in  tlieir  discretion,  or  in  some  order  nan)ed  in  tlie  will."  In 
sncli  case  the  learned  author  contends  that  it  would  be  the 
duty  of  the  trustees  to  assure  themselves  that  a  deficiency  in 
the  personalty  has  really  occurred  before  they  can  proj^erly 
proceed  to  sell  real  estate,  and  distinguishes  between  a  trust 
and  power  of  sale  in  this  manner:  "A  power  of  sale,  in  the 
event  of  the  personal  estate  proving  insufficient  to  pay  debts 
or  legacies,  or  both,  is  a  power  depending  upon  a  condition 
precedent,  and  will  not  attach  unless  the  condition  occur;  and 
a  sale  under  such  a  power,  when  the  condition  had  not  in  fact 
occurred,  will,  of  course,  convey  no  title.  It  is,  therelore,  in 
a  case  of  this  kind  essential,  that  all  persons  interested  in  the 
purchase  and  in  acquiring  a  good  title,  should  assure  them- 
selves that  the  power  has  really  attached.  In  such  a  case  the 
receipt  of  the  money  by  the  appointee  will  have  no  effect 
upon  the  passing  of  the  title,  and  will  commit  no  one  to  its 
application  or  repayment  except  the  person  receiving  it.  But 
in  the  case  of  a  trust  for  sale  nnder  a  will,  the  title  having 
passed  to  the  trustee,  the  title  will  pass  upon  any  such  sale  as 
rests  upon  an  apparent  occurrence  of  the  emergencies  justi- 
fying a  sale;  and  the  payment  of  the  money  by  the  purchaser 
to  the  trustee,  and  his  receipt  for  same,  will  exonerate  the 
purchaser  from  all  responsibility."  ^  The  exercise  of  trusts 
and  powers  is  now  very  generally  controlled  by  statute,  and  a 
trust  not  allowed  by  the  statute  is  wholly  invalid  and  no 
estate  vests  in  the  trustees;  but  a  trust  directing  or  authoriz- 
ing the  performance  of  any  act  which  may  be  lawfully  per- 
formed under  a  power,  will  still  be  valid  as  a  power  in  trust,^ 
subject  to  the  provisions  of  the  statute  in  relation  to  powers. 
"Where  the  trust  given  does  not  purport  to  be  a  trust  of  sale, 
but  simply  a  power  in  trust,  a  deed  made  by  the  executor 
under  it  will  convey  a  good  title  to  the  purchaser,  and  this, 
notwithstanding  the  fact,  that  the  real  estate  is  devised  abso- 
lutely by  the  will.^ 

1  3  Redf.   on  Wills  (?.cl  ed.),  552,       8G6. 

citing  Walker  v.  Smallwood,  Amb.  *  Crittenden  v.  Fairchild,  41  N.  Y. 

(Eng'.  Ch.)  676.  289.     In  this  case  it  was   held  thai 

2  Downing  r.  Marshall,  23  N.  Y.       such  power  was  not  inconsistent  with 


OFFICIAL   CONVEYANCES.  259 

§  15.  Trustees' Deeds.  Titles  derived  under  trustees' deeds 
require  close  scrutiny,  for  where  a  deed  of  trust  minutelj^  and 
particularly  prescribes  tiie  circumstances  under  wliicli,  and  the 
manner  in  which,  the  trustees  shall  have  authority  to  sell  the 
trust  j)roperty,  they  have  no  power  or  authority'  to  dispose  of 
such  property  under  any  other  circumstances  or  in  any  other 
manner.'  Fiduciaries  and  trustees,  if  they  exceed  and  violate 
their  authority,  are  responsible,  thouf^h  no  bad  faith  prompted 
their  acts;  and  those  who  deal  with  them  on  the  faith  of  the 
trust  estate,  must  be  aware  that  they  exercise  only  limited  and 
delegated  powers,  and  are  bound,  at  their  peril,  to  take  notice 
of  such  powers  and  see  to  it  that  the}'  confine  themselves  within 
their  scope."  A  trustee  can  not  delegate  any  duty,  unless  the 
power  to  delegate  is  expressly  given,  which  involves  the  exer- 
cise of  an_y  discretion  or  judgment.  Mere  mechanical  or  min- 
isterial duties  may  be  done  by  others.  The  particular  medium 
of  advertisement,  the  manner  of  conducting  the  sale,  the  best 
method  of  offering  the  property,  and  the  question  of  postpone- 
ment of  the  sale,  are  matters  regarding  which,  when  they  are 
not  prescribed  by  the  instrument  under  which  he  acts,  special 
trust  and  confidence  are  reposed  in  the  trustee;  and  they  can  not 
be  delegated  to  an  agent.'  All  of  these  duties  are  usually  mat- 
ters of  recital  in  the  trustee's  deed,  and  it  is  advisable  that  they 
be  shown  in  the  abstract  substaiitially  as  there  stated.  Where 
the  trust  deed  forms  a  portion  of  the  examination,  the  trusts 
and  conditions  should  fully  appear  in  the  abstract  of  that  doc- 
ument, and  reference  to  them  will  be  sufficient  in  preparing 
the  synopsis  of  the  trustee's  deed.  Should  the  trust  deed  not 
be  included  in  the  examination  the  conditions  as  recited  in  the 
deed  may  be  given,  or  a  note  substantially  embodying  them 
may  be  appended,  as  per  the  example  shown.  Here  is  an 
example  of  a  trustee's  deed  made  on  foreclosure  of  a  power  of 
sale: 

the  devise,  but  the  estate  vested  in  ^Owen  v.  Reed,  27  Ark.  122;  Ver 

the  devisees,  subject  to  the  executi  jn  non  v.  Board  of  Police,  47  Miss.  181.. 

of  the  power.  *  Bales  v.  Perry,  61  Mo.  449. 
•lIunttiJ.Townshend,  31  Md.  336. 


2G0  ABSTRACTS    OF   TITLE. 

Pliny  B.  Smith,  "1        Trustee's  Deed. 

Trustee,  Dated  Jan.  5,  1882. 

to  \      Recorded  Jan.  6,  1882. 

William  lliompson,  \       Book  500.  page  520. 

Document  1008.  J       Recites,   that   John   Peter- 

son and  M.aria,  his  %o\fe,  hy 
a  Trust  Deed,  dated  If  ay  1,  1880,  and  recorded  May  3, 
1880,  in  look  JflO,  page  512,  conveyed  to  Pliny  B.  Smith, 
as  Trustee,  all  the  premises  hereirmfter  described,  to  secure 
the  payment  of  $1,000,  to  Hiram  Jones,  m  one  year  from 
May  1,  1880,  evidenced  ly  said  Peterson'^s  one  promissory 
note  of  even  date  toith  said  Trust  Deed. 

Also  sets  forth  the  power  of  sale  in  said  Trust  Deed  con- 
tained} 

And  defaidt  having  heen  made  in  the  payment  of  said  note, 
and  Hiram  Jones,  the  legal  holder  thereof,  having  applied 
to  first  party,  as  such  Trustee,  to  cause  the  prennises  herein 
described  to  be  sold  for  the  purposes  mentioned,  in,  and  in 
accordance  with  the  provisions  of  said  Trust  Deed,  first  party 
on  Dec.  5,  1881,  caused  a  due  notice  to  be  published  in  the 
Legal  Adviser,  a  newspaper  published  {printed^  in  the  City 
of  Chicago,  Cook  County,  Illinois,  that  said  premises  herein- 
after described  would,  on  Jan.  5,  1882,  at  one  o'' clock  P.  21., 
be  sold  at  public  auction,  at  the  North  door  of  the  Court 
Housed  in  the  City  of  Chicago,  Ills.,  to  the  highest  bidder  for 
cash,  by  virtue  of  the  power  and  authority  in  him  vested  by 
said  Trust  Deed;  which  said  notice  was  {printed)  published 
for  thirty  days  in  said  imper,  commencing  on  Dec.  5,  1881, 
and  ending  on  Jan.  If.,  1882,  the  date  of  the  first  paper  con- 
taining the  same,  being  Dec.  5,  1881,  and  of  the  last  of  Jan. 
k,  1882. 

And  said  premises  having  been,  by  said  first  party,   07i 

^  The  power    of  sale  may  be  set  a  sale    at    the   ruins  of  the   north 

out  here  as  directed.  door.     The   meaning  of  the  phrase 

2  A  power  to  sell    "at  the  north  consists  in  identifying  a  place  of  sale, 

door  of  the  court  house,"  may  be  not  in  the  identity  of  the  door:     Wal- 

well  executed,   if  the  building  has  ler  v.  Arnold,  71  111.  850. 
meantime  been  d  stroyed  by  fire,  by 


OFFICIAL    CONVEYANCES.  201 

Jan.  6y  1SS2,  at  one  o'cloch  P.  M..  in  the  manner  jprescrlljcd 
in  and  ly  said  Trust  Deed,  and  at  the  place  last  aforesaid., 
in  'pursuance  of  said  notice,  offered  for  sale  at  public  auc- 
tion., to  the  highest  bidder  for  cash,  and  second  farty  having 
been  the  highest  bidder  therefor,  and  having  bid  for  the  tract 
hereinafter  named,  %lfi50,  he  was  duly  declared  the  purchaser 
thereof 

Now,  therefore,  in  consideration  of  the  sum  so  bid,  gra7its, 
bargaAns,  sells,  aliens,  remises,  releases  and  confirms  the  fol- 
lowing described  land  in  Chicago,  Cooh  County,  Illinois,  to 
wit:     {Here  set  out  the  description  of  the  property  conveyed.'] 

Together,  with  all  and  singular,  the  tenements,  heredita- 
ments, and  appurtenances  thereunto  belonging,  as  the  same 
are  described  and  conveyed  in  and  by  the  said  Trust  Deed; 
and  also,  all  the  estate,  right,  title,  interest, property ,  claim, 
and  demand  whatsoever,  both  in  law  and  equity,  of  the  said 
John  Peterson  and  wife,  as  loell  as  of  the  said  first  pa.rty ,  of, 
in,  and  to  the  above  described  premises,  with  the  appurte- 
nances, as  fully,  to  all  intents  and  purposes,  as  first  party 
huth  poioer  and  authority  to  grant,  sell,  and  convey  the  same 
by  virtue  of  the  said  Trust  Deed. 

AcJcgt.,  dated  Jan.  5,  18S2. 

Should  no  trust  deed  be  shown  in  the  examination,  append 
the  power  of  sale  under  which  tlie  trustee's  deed  is  given,  as 
follows: 

Note. — The  Trust  Deed  from  John  Peterson  and  wife  to 
Pliny  B.  Smith,  dated  May  1,  ISSO,  and  recorded  May  ~, 
1880,  as  Doc.  252,  in  booh  J^IO,  of  Records,  page  512,  provides 
in  trust,  that  in  case  of  default  in  the  payment  of  said  note, 
or  any  part  thereof,  according  to  the  tenor  and  effect  of  said 
note,  then,  on  application  of  the  legal  holder  of  said  note,  to 
sell  and  dispose  of  the  said  premises,  and  all  the  right,  title^ 
benefit  and  equity  of  redemption  of  said  first  party,  their 
heirs  and  assigns  therein,  at  public  auction,  at  the  North 
ioor  of  the  Court  House,  in  Chicago,  Illinois,  or  0}i  said 
premises,  as  may  be  specified  in  the  notice  of  such  sale,  for 
the  highest  and  best  price  the  same  will  bring  in  cash,  at 
least  thirty  da ys^  public  notice  having  been  previously  given 


262  ABSTKACTS    OF   TITLE. 

of  the  time  and  place  of  such  sale,  hy  advertisement  in  one  of 
the  daily  or  weekly  newspajpers  at  that  time  published  in  said 
City  of  Chicago,'  and  to  Tnahe,  execute  and  deliver  to  the 
purchaser  or  purchasers  at  such  sale,  good  and  sufficient  deed, 
or  deeds  of  conveyance  for  the  premises  sold^  *  *  *  * 
which  sale  or  sales  so  made  shall  be  a  perpetual  bar,  both  in 
law  and  in  equity,  against  the  said  first  party,  their  heirs 
and  assigns,  and  all  other  persons  claiming  the  premises 
aforesaid,  or  any  part  thereof,  by,  from,  through  or  under 
said  first  party,  or  any  of  them. 

Second  party,  with  or  without  re-advertising,  is  hereby 
authorized  and  empowered  to  postpone  or  adjourn  said  sale 
from,  time  to  time  at  his  discretion,  and  also  to  sell  said 
premises  entire,  without  division,  or  in  parcels,  as  he  may 
think  best. 

In  case  of  a  breach  of  any  of  the  covenants  or  agreements 
herein,  by  first  party,  said  premises  shall  be  subject  to  sale 
and  conveyance,  on  request  of  the  legal  holder  of  said  notei 
in  like  manner  and  with  the  same  effect  as  if  the  said 
indebtedness  had  matured. 

First  party  covenants  and  agrees  that  in  case  of  a  sale  and 
conveyance,  as  aforesaid,  of  said  premises,  the  deed  and  deeds 
of  conveyance  made  in  pursuance  of  such  sale  shall  be  prima 
facie  evidence  of  the  due  compliance  with  and  performance 
of  the  terms,  conditions  and  requirements  of  this  deed  of 
trust,  by  second  party  or  his  successor  in  trust  aforesaid,  in 
advertising  and  making  such  sale  and  conveyance,  to  the 
extent  of  the  recitals  contained  in  such  deed  or  deeds. 

AVhere  a  trustee's  deed,  made  upon  a  sale  under  a  ^alid  deed 
of  trust,  shows  the  sale  to  have  been  made  in  strict  conformity 
with  the  power  contained  in  the  trust  deed,  and  the  purchaser 
Isas  liad  no  notice  of  any  irregularities  in  the  sale,  his  title 
will  be  protected,  as  respects  any  such  irregularities,  if  any, 
there  were,  as  that  of  an  innocent  purchaser/ 

§  16.  Mortgagees'  Deeds.  Mortgagees'  deeds,  made  in  pur- 
suance of  a  power  of  sale,  differ   in  no  important  particular 

1  Hosmer  v.  Campbell,  93  111.  572. 


OFFICIAL    CONVEYANCES.  263 

from  conveyances  by  trustees,  the  mortgagee  being,  for  tlie 
purposes  of  the  conveyance,  an  executor  of  an  expi-ess  trust. 
He  ishekl  to  tlie  same  strict  rules  tliat  reiruhitc  the  cunduct  of 
other  trustees,  and  can  not  exceed  tlie  express  powers 
under  which  he  acts.  A  mortgagee  may  sell  the  equity  of 
redemption  of  the  niortgagor  and  such  interest  as  is  conveyed 
to  him  by  the  mortgage  under  which  he  sells,  but  lie  can  not 
sell  the  equity  of  redemption  by  itself;  nor  can  he  sell  an  un- 
divided portion  of  his  interest  in  the  land  included  in  the 
mortgage.  A  proper  execution  of  tlie  power  of  sale  requires 
him  to  sell  all  he  is  entitled  to  under  it,'  and  for  the  same 
reason  he  has  no  right  to  sell  a  greater  interest  than  the  mort- 
gage gives  him  or  authorizes  him  to  sell.  A  violation  of 
these  rules  will  render  the  sale  invalid.^  The  recitals  of  a 
mortgao^ee's  deed  are  material  to  its  validity,  as  tending  to 
show  a  due  execution  of  the  power  and  compliance  with  the 
conditions  of  the  trnst,^  and  should  be  shown  in  the  abstract 
in  the  same  manner  as  indicated  in  case  of  trustee's  deeds.* 
The  original  purchaser  at  a  sale  by  a  mortgagee,  under  a  power 
of  sale  contained  in  the  mortgage,  is  chargeable  with  notice  of 
defects  and  irregularities  attending  the  sale,  and  can  not  evade 
the  effect,  but  it  would  seem  that  as  to  remote  purchasers, 
the  sale  is  only  voidable  on  proof  of  actual  knowledge  of  such 
defects.*  It  has  been  held,  however,  that  a  properly  executed 
deed  reciting  strict  conformity,  the  purchaser  having  no  actual 
knowledge  or  notice  of  any  irregularity,  and  taking  such  deed 
upon  the  strength  of  the  assurances  therein  contained,  will 
protect  the  title  of  such  purchaser." 

'  Fowle  V.  Merrill,  10   Allon,  350;  der  the  mortcrngor  with  constructive 

Torrey  v.   Cook,  116  Mass.    163.  notice  that  thore  had   been  a  valid 

2  Donohue  v.  Chase,  11  Reporter,  sale  under  the  power,  although  the 

22"t.  deed  may  be  defectively  executed  so 

^  Gibbons  v.  Hoag,  95  111.  45.  as  not  to  pass  the  legal  title:  Gibbons 

*  Where  a  deed  for  land  sold  under  t>.  Hoag.  05  III.   4-''>. 

a  power  in  a  mortgage,  reciting  cor-  *  Hamilton  r.  Lubukee,  51  III.  415. 

rectly  all  the  facts  showing  a  right  But  see  Hosmer  r.  Campbell,  98  111. 

to  make  the  sale,  is  recorded  in  apt  572. 

time,  the  record  thereof  will   affect  ^Ilosmer  v.  Campbell,  OS  111.  572. 
all  persons  thereafter  claiming  un- 


2G1  ABSTRACTS    OF    TITLIC. 

§  17,  Executors  and  Administrators.  The  real  estate  of  a 
deceased  person  is  Irequentlj  conveyed  tliroug-h  the  media  of 
what  are  known  as  "personal  representatives,"  consisting  of 
executors,  or  persons  specifically  designated  for  that  purpose 
by  the  decedent,  and  administrators,  who  act  by  virtue  of  an 
appointment  under  the  law.*  An  executor  may  sell  and  con- 
vey lands  held  in  special  trust  without  the  intervention  of  a 
court,  but  not  such  lands  as  are  sold  in  due  course  of  admin- 
istration to  pay  decedent's  debts,  while  an  administrator 
can  do  no  act  affecting  lands  without  special  orders  of  a 
court.  In  case  of  sales  by  either  officer,  no  title  passes  until 
the  execution  and  delivery  of  a  deed,^  and  without  such  title 
as  the  deed  conveys,  the  purchaser  can  not  maintain  or  defend 
ejectment  against  or  by  the  heir.^ 

§  10.  Bxecutors'  Deeds,  A  testamentary  executor  stands 
in  the  place  of  and  represents  his  testator.  He  derives  his 
power  primarily  from  the  will,  and  in  this  respect  differs 
somewhat  from  an  administrator,  whose  sole  power  is  derived 
from  the  law  and  the  directions  of  the  court.*  "When  acting 
under  a  naked  testamentary  appointment,  his  powers  are  co- 
extensive with  those  of  the  administrator,  and  he  is  bound  by 
the  same  rules,  and  subject  to  the  same  restrictions.  Eut  the 
executor  may  also  be  a  trustee,^  and,  when  acting  as  such,  the 
scope  of  his  powers  is  measured  and  limited  by  the  will  which 
appoints  him.  The  distinction,  therefore,  must  ever  be  kept 
in  view  of  the  powers  and  duties  of  an  executor,  as  such,  and 
those  which  may  devolve  upon  him  as  trustee,  and  not  as 
executor.*  Under  his  testamentary  authority,  he  may  sell 
land,  and  otherwise  execute  the  trusts,  and  exercise  the  powers 

*  "  Legiil  "    or   "Personal    repre-  ^  Doe  v.  Hardy,  52  Ala.  291;  Grid- 

sentative  "    in    tlie    commonly    ac-  ley  v.  Phillips,  5  Kan.  349. 
cepted  sense,  means   administrator  *  Walker  v.    Craig,    18    III.    116; 

or  executor.     Bat  this  is  not  the  VanWickle  v.  Calvin,  23  La.  Ann. 

only  deflnition.     It  may  mean  heirs,  205;  Gilkey  v.  Hamilton,  22  Mich, 

next  of  kin,  or  descendants:     War-  283. 
necke  v.  Lembea,  71  111.  91.  « Pitts  v.  Singleton,  44  Ala.  363. 

2  A  properly  conducted  sale,  after  ^Warfieldt'.  Brand,  13  Bush  (Ky.), 

confirmation  vests  the  equitable  title  77;  White  v.  Clover,  59  111.  462. 
in  the  purchaser. 


OFFICIAL    CONVEYANCES.  2()5 

ennmcrated  and  conferred  in  the  will,  subject  to  tlie  general 
regulations  of  tlie  statute,  and  free  from  the  control  or  inter- 
vention of  a  court,^  but  where  authority  is  not  expressly 
given,  or  where,  during  the  administration,  he  perforins  the 
ordinary  offices  of  an  executor,  as  where  land  is  sold  to  pay 
the  debts  of  decedent,  no  express  power  being  given,  he  must 
first  obtain  authority  or  license  from  the  probate  court,  and 
his  sale  must  be  reported  to,  and  confirmed  by,  such  court 
before  a  deed  can  lawfully  issue  to  the  purchaser.  An  exec- 
utor's deed,  therefore,  will  be  governed  by  the  law  relating  to 
trustees  or  administrators,  according  as  he  may  convey  in  one 
or  the  other  capacity,  and  the  reader  is  referred  to  the  remarks 
on  those  chisses  of  deeds  respectively.''  In  either  case,  the 
authority  of  the  deed  must  precede  it;  in  the  one  case  the 
will  showing  the  power  of  sale  or  trust,  and  the  manner,  if 
stated,  in  which  the  power  must  be  exercised  or  the  trust  exe- 
cuted, and  in  the  other,  the  license,  report  and  confirmation, 
while  a  sj^nopsis  of  the  probate  of  the  will  must  be  shown  in 
both  instances.  As  in  all  other  cases  of  fiduciai-y  convev- 
ances,  the  deed  itself  must  show  substantial  compliance  with 
the  requirements  of  the  will  and  of  the  law,  and  be  in  other 
res|)ects  regular. 

§  19.  Administrators'  Deeds.  An  administrator  is  re- 
garded as  an  executive  officer  of  the  court,  while  he  also  oc- 
cupies the  relation  of  trustee  to  the  estate,  its  creditors  and 
distributees.'  Although  he  may  not  possess  as  much  power 
as  an  executor,  the  latter  deriving  his  power  from  the  testator 
and  the  law,  and  the  administrator  from  the  law  only,*  he  yet 
possesses  all  necessary  power  to  sell  property,  negotiate  securi- 
ties, and  to  settle  and  pay   debts,*   but  under  the  order  and 

^  Buckingham  r.  Wesson,  54  ]\Iiss.  ^See    "Judicial    and    Esocution 

526;    Whitman  v.    Fisher,    74   111.  Sales,"  and  the  chapter  on  Testa- 

147;  Cronise  r.  Hardt,  47  Md.  4:):'>;  mo ntary  Conveyances. 

Jelks   V.    Barrett,    52    Miss.     31.".;  »  Wingatef.  Pool,  25  111.  118;  State 

Hughes  V.  Washington,  72  III.  84.  v.  Moaghor,  44  Mo.  356. 

But  the  power  must  be  explicit;  gen-  ■*  Gilkey  r.  Hamilton,  22  Mich.  283. 

er;il   words  do  not  confer  powor  to  MValker    v.    Craig,    18    ill.    116. 

sell  lands:  Skinner  v.  Wood,  76  N,  Real  e.«tatecannotbe  sold  by  an  ad- 

C.  109.  ministrator  unless  the  personal  estate 


2G6  AESTRACTS    OF    TITLE. 

direction  of  the  conrt.  He  takes  neither  an  estate,  title,  nor 
interest  in  tlie  lands  of  his  intestate,'  bnt  a  mere  naked  power 
to  sell  for  specific  purposes.^  He  takes  the  land  as  he  finds 
it,'  and  havnng  no  interest  therein,  can  maintain  no  action  to 
perfect  the  title  or  relieve  it  of  any  burden,*  and  must  sell  it 
as  he  finds  it,®  An  administrator's  deed  derives  its  primary 
validity  from  the  order  of  the  court  directing  the  sale  of 
the  land  in  question,  and  this  order,  together  with  a  synop- 
sis of  the  preliminary  proceedings  which  induced  it,  and 
the  report  of  sale  and  confirmation  sliould  precede  the 
deed  in  every  instance.®  The  power  to  sell  is  a  personal  trust, 
which  can  not  be  delegated,'  and  the  sale  being  a  fiduciary  act 
based  upon  statute,  must  show  afhrmatively  a  strict  com- 
pliance with  the  law.*  In  addition  to  the  report  of  sale,  a 
substantial  account  of  same  is  also  incorporated  into  the  deed, 
and  this,  too-ether  with  all  other  material  recitals  tending  to 
show  a  full  compliance  with  the  decretal  order  and  statutory 
requirements  should  be  stated  with  reasonable  detail  in  the 
abstj-act.     A  form  is  here  appended  for  further  illustration: 


William  If.  Smith  as  admin- 
istrator of  the  estate  of 
John  M.  Thompson,  de- 
ceased, late  of  Cooh  Coun- 
ty, Ills. 

to 
James  McUenry. 


Administrator's  Deed. 
Bated  July  15, 1882. 
Recorded  Aug.  ^,  1882. 
Booh  119,  Bage  UO. 
Sets  forth,   that  the  Bro- 
hate  Court,  of  Cook  County, 
Illinois,  at  a   regular   term 
Doc.  125,Ji.l6. '  J  thereof,  on  May  10,  1882,  in 

a  certain  cause,  hrought  un- 
der the  statute,  wherein  said  William  M.  Smith,  as  Adminis- 
trator of  the  estate  of  said  John  R.  Thompson,  deceased, 

is  insufficient  to  pay  the  liabilities;  'Gridley  v.  Watson,  53  111.    186 

and,  ordinarily,  only  so  mucli  should  *  LeMoyne  v.  Quimby,  70  111.  .399; 

be  sold  as  is  necessai-y  for  that  pur-  Ryan  v.  Duncan,  88  111.  146. 
pose:  Newcomer  i\ Wallace,  30  Ind.  ^  Martin  v.  Beasley,  49  Ind.  280. 

216;  Foley  tJ.   McDonald,  46   Mis.  ^See   Probate  Proceedings,  hifra. 

238.  ''  Chambers  v.  Jones,  72   111.  275; 

1  Ryan    v.    Duncan,   88  III.    144;  Grldley  ;-.  Philips,  5  Kan.  349. 
Stuart  V.  Allen.  16  Cal.  473.  » Foil  r.  Young,  63  111.  106;  Lock- 

2  Smith  t'.  MeConnell,    17  111.  1-35;  wood  v.   Sturdevant.  6  Conn.  386; 
Floyd  V.  Herring,  64  N.  C.  409.  Corwin  v.  Merritt,  3  Barb.  341. 


OFFICIAL    CONVEYANCES.  2G7 

was  plaintiff,  and  George  R.  Thompson  and  Mary  E. 
TJwmjJSon,  were  defendants,  did,  hy  order  duly  entered,  em- 
power and  direct  said  William  M.  Smith,  as  such  Adminis- 
trator, to  sell  at  public  vendue  the  real  estate  of  said  John  R. 
Thomp)Son,  deceased,  hereinafter  described,  for  the  purpose  of 
paying  the  just  claims  against  his  estate. 

That  in  pursuance  of  said  decretal  order,  said  first  party, 
as  such  administrator,  having  given  due  public  notice  ofjthe 
intended  sale  by  causing  a  notice  of  the  terms,  time  and 
place  of  such  sale,  together  lolth  a  description  of  the  real 
estate  to  be  sold,  to  be  previously  posted  for  four  weeA's,  at 
four  of  the  most  public  places  in  the  county  where  such  real 
estate  teas  sold,  and  also,  to  be  puljlislied  for  four  successive 
weeks  prior  to  said  sale,  in  the  Chicago  Legal  News,  a  nexos- 
paper  jyubllshed  in  said  Cook  County,  the  county  where  such 
real  estate  was  sold,  agreeably  to  the  order  and  directions  of 
said  Probate  Court,  and  In  accordance  with  the  statute  in 
such  cases  made  and  provided,  did,  on  June  15,  18S2,p>iir- 
suant  to  the  order  and  notice  aforesaid,  sell  at  public  vendue 
the  real  estate  of  said  John  It.  Thompson,  deceased,  in  said 
order  described,  to  James  Mc Henry,  he  being  the  hlgliest 
bidder  therefor. 

That  first  party  made  and  filed  in  the  office  of  the  clerk  of 
said  Probate  Court  a  complete  report  of  his  proceedings  and 
sale  under  said  order,  and  said  Probate  Court  having  care, 
fully  examined  the  same  on  July  10,  1882,  finding  the  same 
correct,  did  approve  and  confirm  the  same,  and  ordered  said 
William  M.  Smith,  as  such  administrator,  to  execute,  ac- 
knoicledge  and  deliver  a  deed  of  said  real  estate  to  second 
party,  on  his  complying  lolth  the  terms  of  said  sale;  and 
that  second  parity  has  in  all  things  compiled  with  the  ter?ns 
of  said  sale  on  his  jyart  to  be  performed. 

Now,  therefore,  first  party,  in  conslderatioji  oftheptremises 
and  $100.00,  grants,  bargains  and  sells  land  in  Cook  County, 
III.,  to  wit:  [Ilere  follows  the  description  of  the  land  ac- 
cording to  the  deed.'] 

Together  with  all  and  singular  the  hereditaments  and  ap- 
purtenances thereunto  belonging,  and  all  the  estate,  right. 


2G8  ABSTKACTS    OF   TITLE. 

title,  interest,  claim,  and  demand  whatsoever^  at  laio  or  in 
equity,  wldcli  said  John  R.  Thompson,  deceased,  had  at  the 
time  of  his  death,  in  and  to  said  premises. 

To  have  and  to  hold  the  same  unto  second  party,  his 
heirs  and  assigns  forever,  as  fully  and  effectually,  to  all  in- 
tents and.  purposes  in  law,  as  second  party  might,  could  or 
ought,  to  sell  and  convey  the  same,  hy  virtue  of  said  decretal 
order. 

Certificate  of  achnowledgment,  dated  July  15,  1882. 

The  doctrine  of  caveat  emptor  applies  to  all  sales  by  tlie 
administrator/  and  the  purchaser,  who  is  presumed  to  have 
made  all  necessary  inquiries,  takes  the  title  at  his  peril,^  and 
subject  to  all  liens,  except  those  for  the  payment  of  which  the 
land  is  sold.'  The  purchaser  lias  no  right  to  the  laud  until 
the  sale  has  been  confirmed,*  but  where  the  sale  has  been 
made  under  a  pr(jper  order  of  the  court,  and  reported  to  and 
confirmed  by  it,  it  conveys  title  even  though  the  proceedings 
be  irregular.^ 

§  20.  Administrator  "With  Will  Annexe4,  An  adminis- 
trator with  the  will  annexed  occupies  much  the  same  posi- 
tion as  an  executor  and  may  exercise  many  of  tlie  exec- 
utor's powers.**  He  acts  under  the  will  and,  as  a  rule,  any 
power  given  to  the  executor,  which  is  not  in  the  nature  of  a 
personal  trust,  that  is,  where  the  power  given  belongs  to  the 
office  of  executor  and  not  to  the  person,  may  be  exercised  by  an 
administrator  with  the  will  annexed.^  Where  the  will  consti- 
tutes a  personal  trust  wliich  the  executor  alone  could  execute 
without   the  intervention  of  a  court  or  some  statutory  regula- 

:    1  McConnell  v.  Smith,  39  111.  279.  appointed    by  the  will.     2.    Where 

2  Bishop  V.  O'Connor,  69  111.  431.  an  executor  is  appointed,  but  dies 

3  Henderson  v.  Whitinger,  56  Ind.  before  the  testator.  3.  Where  from 
12,\,  f^ii}'  cause   the  executor  becomes  in- 

*  Mason  r.  Osgood,  64  N.  C.  467;  competent,  disqualified  or  renounces 

Rawlings  v.  Bailey,  15  111.  178.  the  office.     4.  Where  the    executor 

^  Thorn  v.  Ingram.  25  Ark.  52  ;  dies  before  the  completion  of  admin- 
Myer  r.  McDougal,  47  111.  278.  Com-  istration;  in  this  latter  case  the  ad- 
pare  Chase  v.  Ross,  36  Wis.  267.  miiiistrator  is  also  administrator  de 

®  An  administrator  cr<m  testamento  bonis  mm. 

an»ea70  is  appointed  on  the  following  'Anderson  v.  McGowan,  45  Ala. 

occasions:   1.  Where  no  executor  is  462;  Prescott  r.  Morse,  64  Me.  422; 


OFFICIAL    CONVEYANCES. 


269 


Hon,  tlie  trust  will  not  ]iass  to  the  administrator  with  the  will 
annexed,  and  sales  of  real  property  of  the  testator  by  the  ad- 
ministrator will  be  without  authorit}'  and  void.*  "Where  the 
will  o'ives  to  an  executor  therein  named  powers  and  duties  to 
be  performed  which  do  not  ordinarily  come  within  the  scope 
of  an  executor's  functions,^  or  where  land  is  devised  to  hiin 
to  be  sold,'  an  administrator  with  the  will  annexed  has  no 
power,  witliout  the  aid  of  a  court,  to  sell  the  lands  so  devised 
or  directed  to  be  sold,  or  execute  the  powers  given  to  the  ex- 
ecutoi'.* 

§  21.  Guaraians' Deeds.  Guardians*  and  conservators' fre- 
quently make  conveyances  of  the  real  estate  of  their  wards, 
either  to  pay  debts,  or  for  the  support  and  education  of  the 
ward,  or  for  the  purpose  of  investing  the  proceeds;  and  such 
conveyances,  if  attended  by  all  the  statutory  requisites,  are 
effectual  to  convey  all  the  title  which  the  ward  may  have  pos- 
sessed at  the  time  of  the  sale.''  Such  sales  are  made  under 
the  direction  of  the  probate  court  upon  petition  by  the 
guardian  stating  the  necessary  jurisdictional  facts,*  and  after 
notice  of  such  application,  in  the  manner  provided  by  law.^ 
Such  sales  must  be  further  reported  to  and  confirmed  by  the 


Belcher  v.  Branch,  11  R.  I.  226. 

'  Anderson  v.  McGowan,  45  Ala. 
280;  Dunnino-  v.  Ocean  Nat.  Bank, 
61  N.  Y.  497;  Ross  v.  Barclay,  18 
Pa.  St.  179. 

2  Inprle  v.  Jones,  9  Wall.  486. 

^NicoU  V.  Scott,  99  111.  529;  Dun- 
ning V.  Ocean  Nat.  Bank,  61  N.  Y. 
497;  Gilchrist  v.  Rea,  9  Paige,  66. 

*  Such  trusts  frequently  devolve 
upon  a  trustee  which  the  court  may 
appoint  for  that  purpose:  Farwell  v. 
Jacobs,  4  Mass.  6;}4. 

^The  common  law  recognizofl  four 
kinds  of  guardians,  to  wit :  in  chiv- 
alry, by  nature,  i  socasre,  and  I)y  nur- 
ture. The  distinctions  do  not,  and 
never  have  existed  in  the  United 
States.  The  statutory  guardianship  is 
the   only  kind  which  figures  in  land 


titles. 

®  The  estate,  and  frequently  the 
person  as  well,  of  persons  noii  com- 
potes mentis,  is  often  confided  to  the 
cai-e  of  a  statutory  guardian  gener- 
ally called  a  conservator  or  com- 
mittee. 

'  Wisenor  v.  Lindsay,  33  La.  An. 
1211;  Mulfordr.  Beveridge,  78  111. 
455  ;  Fitzgibbon  v.  Lake,  29  111.  165. 

*The  petition  is  of  paramount 
necessity,  and,  it  seems  that  with- 
out such  a  petition  the  court  gets  no 
jurisdiction  to  grant  a  license  to  sell: 
Ryder  r.  Flanders,  oO  Mich.  3:)6. 

®The  notice  is  jurisdictional,  and 
a  sale  without  giving  the  statutory 
notice  has  been  held  absolutely  void: 
Rankin  v.  Miller,  43  Iowa,  11;  Ken- 
nedy I'.  Gaines,   51   Miss.    625.     If, 


270  ABSTRACTS   OF    TITLE. 

court  granting  the  license/  but  the  title  of  the  ward  will  not 
he  divested  until  a  deed  has  been  ordered  and  actually  exe- 
cuted.'^ The  deed  should  therefore  be  preceded  in  the  ab- 
stract by  bi'ief  recitals  or  references  to  all  the  jurisdictional 
facts.  These  would  consist  of  an  abstract  of  the  letter  of 
guardianship,  but  not  necessarilj^  of  the  preliminary  matters 
of  inducement:  a  letter  of  guardianship  is  in  the  nature  of 
a  certificate  or  commission;  and  in  the  absence  of  any  statu- 
tory provision  requiring  it,  it  is  not  essential  to  its  validity 
as  evidence  of  the  appointment  that  it  should  recite  the 
mode  and  particulars  of  the  emanation,  and  all  reasonable 
prQ,sumptions  must  be  indulged  in  favor  of  its  having  ema- 
nated regularly  and  after  lawful  proceedings;'  a  brief  syn- 
opsis of  the  petition  and  notice,  or  at  least  references  to  those 
instruments;  a  synopsis  of  the  decree  or  license  of  sale;  and 
reference  to  the  guardian's  report  of  sale,  and  order  of  con- 
firmation. 

§  22.  Trustees  can  not  become  Purchasers.  It  is  a  settled 
principle  of  equity,  that  no  person  who  is  placed  in  a  situation  of 
trust  or  confidence  to  the  subject  of  the  sale  can  be  a  purchaser 
of  the  property  on  his  own  account.  The  principle  is  not  con- 
fined to  a  particular  class  of  persons,  such  as  guardians,  trust- 
ees, etc.,  but  is  a  rule  of  univ^ersal  application  to  all  persons 
coming  within  its  principle,  which  is,  that  no  party  can  be 
admitted  to  purchase  an  interest,  where  he  has  a  duty  to  per- 
form that  is  inconsistent  with  the  character  of  purchaser. 
The  reason  of  the  rule  is,  not  because  they  might  not,  in 
many  instances,  make  fair  and  honest  disposition  of  it  to 
themselves,  but  because  the  probability  is  so  great  that  they 
would  fri'quently  do  otherwise,  without  danger  of  detection, 
that  the  law  considers  it  better  policy  to  prohibit  such  pur- 

however.    the    notice    is     defective  ^  Doe  r.  Jackson.  51  Ala.  514. 

merely,  tlie  jur'sdiction    is    saved:  *  Burrows  p.  Bailey,  34  Mich.  64. 

Lvon  V  Ymnatta,  35  lovra,  521.  The  proceedings  by  a  guardian  to 

'  Confinnation  is  >  ssential   to   the  sell  his  ward's  lands  are   statutorj', 

vali  lity  of  the   sale:  People    v.  Cir-  and  a  material  deviation  from  the 

cnit  Judge,  19  Mich.  296  ;  White  v.  requirements   of  the    statute   is,  in 

Clawson,  79    Ind.    188;    Chapiu  v.  general,  jurisdictional. 
Curteniui,  15  lU.  427. 


OFFICIAX   CONVEYANCES.  271 

chases  entirely  tlian  to  assniiie  them  to  be  valid  except  where 
they  can  be  proved  to  be  fraudulent.  A  trustee  is  not  barred 
from  ever  becominpj  a  purchaser  of  what  had  once  been  part  of 
tlie  trust  estate,  AVlien  the  title  of  the  trust  estate  has  passed 
by  a  valid  sale,  in  which  the  trustee  lias  no  interest,  and  all 
interest  of  the  cestui  qioe  trust  in  it  has  ceased,  the  trustee 
becomes  a  stranger  to  the  property,  and  may  purchase  it  like 
any  other  siranger.  Agents  may  be  quasi  trustees  to  bring 
them  within  the  broad  rnle  api)licable  to  trustees  generally, 
that  they  can  not  become  purcliasers  from  their  principals. 
But  an  agent  generally  comes  within  this  rule  only  wiicn  \\'\i 
agency  is  so  connected  with  the  sale  as  to  make  it  his  duty  to 
obtain  the  best  terms  for  his  ])rinci])al,  when  he  can  nut  be  agent 
to  sell  and  j^rincipal  to  buy.  "The  ru'.e  forbidding  conflict 
between  interest  and  duty  is  no  respecter  of  persons.  It  im- 
putes constructive  fraud,  because  the  temptation  to  actual 
fraud  and  the  facilit}'  of  concealing  it  are  so  great.  And  it 
imj)utes  it  to  all  alike,  who  come  within  its  sco])e,  however 
much  or  however  little  open  to  suspicion  of  actual  fraud."  ^ 

§  23.  Continued — Exceptions  and  Qualifications  to  the 
rule.  The  above  remarks,  thongh  stating  the  geuerally  re- 
ceived doctrine,  are  yet  subject  to  man}'  qnalifications  growing 
out  of  statutes  and  their  judicial  interpretation,  and  while  they 
still  apply  in  all  their  pristine  vigor  to  a  large  class  of  fiduciary 
relations,  to  certain  others  their  effect  has  been  greatly  modi- 
fied. Thus,  a  purchase  of  land  by  an  executor,  at  his  own  sale, 
directly  or  indirectly,  is  not  ordinarily  void,  but  only  voidable 
at  the  option  of  the  heirs  or  beneficiaries  seasonably  expressed.'' 
A  clear  and  unequivocal  affirmance  of  the  sale,  which  must  be 
honafide,  may  conclude  the  beneficiary,  if  under  no  disability 
and  in  full  knowledge  of  the  facts,  and  the  acce})tance  of  pro- 

'  Ryan,  C.  J.,  in  Cook  v.  Berlin  Mill  27;  McGowan  v.  McGowan,  A^  Miss. 

Co..  43  Wis.  4:53;  Story's  p]q.  §  810;  553;  Goodwin  r.  Goodwin.  48  Ind. 

Grumley  v.  Webb,  44  Mo.  444;  131au-  584;  Sheldon  v.  Rice,  30  Mich. 296. 
vel:  V.  Ackerman,  20  N.  J.  Eq.  141;  ^Frazer  v.  Lee,  42  Ala.  25;  Smith 

R.  R.  Co.  V.  R.   R.   Co.,    19  Gratt.  v.  Cranberry,  39  Ga.  381;  Williams 

(Va.)  592;  Boerum  r.  Schenck.  41  N.  r.  Rhodes,  81    111.  571;  Fioueberger 

Y.  182;  Roberts  v.  Roberts,  G5  N.  C.  v.  Lewis,  70  N.  C.  450. 


272  ABSTRACTS    OF    TITLE. 

ceeds  by  the  beneficiary  would,  in  <,reneral,  amonnt  to  an 
affirmance.'  All  such  sales,  however,  are  viewed  by  the  courts 
with  a  jealous  eye  and  set  aside  for  slight  cause,  and  titles 
derived  tlirough  or  under  such  sales  are  questionable  at  best. 
If  re-enforced  by  a  quitclaim  or  confirmation  by  the  heirs  or 
beneficiaries,  they  become  less  obnoxious;  yet  even  then  they 
are  far  from  perfect,  as  the  unsatisfied  rights  of  creditors  may 
raise  equities  sufiicient  to  vacate  and  annul  the  deed. 

'Bo-rum    v.  Schenck,  41  N.   Y.      Scott  y.  Mann,  33  Tex.  721. 
1S2;  Brantly  v.  Cheeley,  42  Ga.  209; 


CHAPTER  XYIII. 

ASSIGNMENTS,  INSOLVENCY  AND  BANKKUPTOT. 

§  1.  Assignments  generally.  §  9.  Bankruptcy. 

2.  Voluntary  assignments.  10.  Jurisiiiction  and  practice. 

ii.  Validity  of  assignments.  11.  Classification — Procedure. 

4.  Formal  requisites.  12.  Nature    and   effect  of    bank- 

6.  Title  of  assignee.  ruptcy. 

6.  Construction  and  effect.  13.  Bankruptcy  proceedings. 

7.  Conflict  of  laws — Foreign  as-        14.  The  assignment. 

signments.  15.     The  assignee's  deed. 

8.  Insolvency.  16.     Discharge  in  bankruptcy. 

§  1.  Assignments  Generally.  "  An  assignment,"  observes 
Mr.  Burrill,^  "  is  a  transfer  or  setting  over  of  property^  or  of 
some  right  or  interest  therein,  from  one  person  to  another; 
the  term  denoting  not  only  the  act  of  transfer,  but  also  the 
instrument  by  which  it  is  effected."  Wlien  applied  to  real 
estate  it  indicates  a  transfer  of  the  entire  interest  of  the  as- 
signor in  the  transferred  property,  though  in  England  it  is 
usually  used  to  express  the  conveyance  of  an  estate  for  life  or 
years,^  and  has  also  the  same  significance  in  this  country  in 
connection  with  leasehold  interests.  In  its  popular  accepta- 
tion, in  the  United  Stales,  it  is  used  to  distinguish  a  peculiar 
class  of  conveyances,  usu  illy  resorted  to  by  persons  who  find 
themselves  in  embarrassed  circumstances  or  are  unable  to  sat- 
isfy the  full  demands  of  their  creditors.  In  this  sense  they  are 
classed  as  voluntary,  or  such  as  are  made  by  the  free  act  and 
deed  of  the  assignor;  and  involuntary  or  statutory,  or  such 
as  are  made  under  compulsion  of  law  and  in  the  furtherance 
of  statutes  of  bankru])tcy  or  insolvency.     In   all    cases  they 

1  Burrill  on  Assignments.  '  2.  Blk.  Com.  326. 

18  (273) 


274  ABSTRACTS   OF   TITLE. 

iin])!}' a  trust  and  tlie  intervention  of  a  trustee,' and  convey- 
ances made  directly  to  the  beneficiaries,  thouLdi  for  tlie  same 
purpose,  are  not  technically  assignments,^  and  come  under 
the  provisions  rei^ulating  ordinary  deeds  of  transfer  and  sale. 
§  2.  Voluntary  Assignments.  The  power  to  make  an  as- 
signment for  the  benefit  of  creditors  is  not  derived  from  any 
statutory  enactment.  Every  debtor,  whetlier  solvent  or  insolv- 
ent possesses,  independent  of  statutory  grant,  the  right  to 
make  any  disposition  of  his  property  which  does  not  inter- 
fere with  the  rights  of  others;  in  other  words,  to  make 
any  honest  disposition  of  his  property  that  he  jdeases. 
The  right  of  assignment  is  clearly  within  the  absolute  domin- 
ion which  the  law  empowers  every  man  to  exercise  over  his 
own.  Statutory  provisions  concerning  assignments  are  to  be 
found  in  all  the  States,  yet  such  statutes  do  not  confer  the 
right,  but  merely  regulate  its  exercise,  subjecting  it,  as  in 
other  transfers  of  property,  to  certain  restrictions  and  limita- 
tions which  experience  has  demonstrated  to  be  wise  and  just; 
but  it  is  still  the  assignor's  voluntary  act,  and  not  the  act  of 
the  law.  So  also,  the  power  of  the  assignor  is  iixed  by  the  in- 
strument of  assignment,  which  is  at  once  the  gui  le  and  meas- 
ure of  his  duty.  Bej'ond  that,  or  outside  of  its  terms,  he  is 
powerless  and  without  authority.  He  distributes  the  proceeds 
and  disposes  of  the  estate  placed  in  his  care,  according  to  the 
dictation  and  under  the  sole  guidance  of  the  assignment,  and 
the  statutory  provisions  merely  regulate  and  guard  his  exer- 
cise of  an  authority  derived  from  the  will  of  tlie  assignor. 
In  all  things  the  assignee  is  the  representative  of  the  assign- 
or, and  must  be  governed  by  the  express  terms  of  his  trust.' 
As  a  general  rule,  in  the  absence  of  special  statutory  restric- 
tions, a  debtor  in  failing  circumstances,  acting  in  good  faith, 
may  lawfully  prefer  one  creditor,  even  to  the  total  exclusion  of 
all  the  others;  and  may  also,  in  like  good  faith,  in   a   reason- 

'  Cowles  V.  Rickett,  1  Towa,  382  ;  son  v.  McGraw,  11  Iowa,  151  ;  Grif 

Dickson  v  Rawson,  5  Ohio  St.    218  ;  fin  v.  Roger  ,  38  Pa.  382. 
Peck  V.  Merrill,  26  Vt.  686.  ^  j^  re  Lewis,  81  N.  Y.  421;  Pills- 

2  Beach  V.   Beston,    47   111.   521  ;  bury  v.  Kingon,  31  N.   J.   Eq.  619; 

Keen  v.  Preston,  24  Ind.  395  ;  John-  B  mk  v.  Willis,  7  W.  Va.  31. 


ASSIGNMENTS,    INSOLVENCY    AND    BANKRUPTCY.  2(0 

able  manner,  use  his  property  by  mortfjaije,  pledge,  or  other- 
wise, in  raising  money  to  pay  such  creditor/ 

§  3.  Validity  of  Assignments.  In  all  cases  where  convey- 
ances are  made  for  the  ostensible  purpose  of  securing  an 
equal  distribution  among  creditors,  of  the  property  of  the 
debtor,  the  validity  of  the  conveyance  depends  upon  the  in- 
tention of  the  debtor.  If  the  intention  be  to  liinder  and  de- 
laj'  creditors  in  the  enforcement  of  their  demands  against 
such  debtor,  rather  tlian  to  secure  an  equitable  distribution 
of  the  property  among  creditors,  and  for  their  benefit,  the 
conveyance  is  fraudulent  and  void.  It  is  not  the  efiect 
of  such  conveyances  that  determines  their  validity,  for  every 
such  conveyance  in  effect  hinders  and  delays  creditors.  It  is 
the  intention  that  controls,  and  that  intention  can  not  be  bet- 
ter determined  than  from  the  language  of  the  conveyance, 
although  it  may  be  established  by  extraneous  evidence.^  A 
full  narration  of  the  recitals  and  conditions  of  the  trust  seems 
desirable  in  all  cases  of  recent  conveyance,  as,  whore  it  appsars 
f  ro!n  the  face  of  the  deed,  that  the  motive  for  making  it  was 
to  prevent  a  sacrifice  of  the  property  ;  or  if  tliere  be  reserved 
to  tiie  assignor  any  benefit  or  advantage  out  of  the  property 
conveyed,  the  intention  as  well  as  legal  effect  would  be  to 
hinder  and  delay  creditors  and  the  conveyance  would  be  void.^ 
The  consideration  expressed  is  a  matter  of  minor  importance, 
the  true  consideration  being  the  agreement  of  the  assignee  to 
perform  the  trusts  imposed  upon  him  by  the  assignment;  and 
that,  in  contemplation  of  law,  constitutes  a  full  and  complete 
consideration.* 

§  4.  Formal  Requisites.  Though  voluntary  assignments 
are  founded  on  common  right,  yet,  to  prevent  fraud  by  the  set- 
ting up  of  fictitious  transfers  claimed  to  have  been  made  for 
the  benefit  of  creditors,  they  must  be  attended  with  the  pre- 
scribed legal  formalities  of  the  State  where  made,  or  where  the 

'  Cuondct  r.  Lahmor,  16  Kan.  527.  (Ky.),  263;  Thelps  r.  Curtis,  SO  III. 

2  German  Ins.  Bank  v.  Nuries,   14  11.'';  Kayser  v.  Hcavenrich,  5  Kan. 

Reporter,  206.  324. 

'  Gardner  v.  Cora.  Nat.  Bank,  95  *  Thoma.s  «.  Clark,  65    Me.    296; 

[11.  298;  Vernon  v.  Morton,  8  Dana  Gates  v.  Labeaume,  19  Mo.  17. 


276  ABSTRACTS    OF   TITLE. 

])i-operty  to  be  affected  is  situated;  and  unless  executed  in  con- 
formity with  such  laws,  are  inoperative  and  void.  By  the  in- 
strument the  debtor's  property  must  be  unconditionally  and 
without  restriction  transferred  to  the  assii^nee,  with  a  general 
authority  to  him  to  receive,  hold,  and  dispose  of  it  for  the 
equal  benefit  of  all  the  creditors,  in  the  order  of  preference, 
if  any,  provided  for.'  The  assignment  should  be  executed  with 
the  same  solemnities  tliat  characterize  ordinary  deeds  for  the 
conveyance  of  land, and  be  dul}-  acknowledged  before  an  author- 
ized officer,^  and  defects  of  this  nature  should  be  noted  by  the 
examiner  with  the  same  scrupulous  care  as  in  other  convey- 
ances between  individuals.  ]^o  particular  form  of  instrument 
is  needed  to  constitute  an  assignment,  and  any  valid  transfer, 
intelligibly  indicating  the  trusts  will  sutfice.*  The  statutory 
requirements  relate  mainly  to  the  acceptance  of  the  trust  by  the 
assignee,  tiling  of  bond,  notice  to  creditors,  etc.,  and  in  these 
respects  a  literal  compliance  is  usually  necessary.  The  ab- 
stract should  show  a  full  synopsis  of  the  proceedings,  suffi- 
ciently indicating  a  compliance  with  the  statute  ;  the  opera- 
tive parts  of  the  instrument  of  transfer,  including  the  trusts;  and 
such  portions  of  the  inventory  or  schedule  as  cover  the  real  es- 
tate in  question. 

^  5.  Title  of  Assignee.  It  is  a  usual  requirement  on  the 
part  of  the  assignee,  that  before  taking  possession  of  the  as- 
signed estate,  he  shall,  within  a  stipulated  time  after  the  fil- 
ino-  of  the  inventory,  execute  and  file  in  the  proper  office,  a 
bond  conditioned  for  the  faithful  performance  of  his  duties; 
and  it  has  been  held  that  the  absolute  title  to  the  property 
assigned  does  not  pass  until  this  bond  is  filed.  In  the  inter- 
val between  the  filing  of  the  assignment  and  the  filing  of  the 
bond,  the  inchoate  or  conditional  title  rests  under  the  protec- 
tion of  the  court,  which  has  jurisdiction  over  the  property, 
but  none  over  the  assignee;  and  the  failure  to  file  the  bond, 
within  the  prescribed  time,  is  equivalent  to  a  declination  of 
trust  which  terminates  all  right  in  the  property  which  the  as- 

»McIntire  t'.Benson,  20  111.  500.  *  Norton  v.  Kearney,  10  Wis.  443. 

2  Britton  v.  Lorentz,  45  N.  Y,  51. 


ASSIGNMENTS,    INSOLVENCY    AND    BANKRUITCY.  Z«« 

signee  may  have  acquired  by  the  filing  of  the  assignment.* 
Where,  however,  there  has  b(;en  a  formal  acceptance  of  the 
trust,  the  transfer  is  complete  and  irrevocable,  and  the  prop- 
erty vests  in  the  assignee  for  the  benefit  of  the  creditors."  The 
filing  of  the  bond  in  such  case,  unless  expressly  made  so  by 
statute,  is  not  a  condition  precedent  to  the  vesting  of  the  es- 
tate, nor  will  the  failure  to  give  the  statutory  security  within 
the  time  limited  invalidate  the  transfer  or  restore  the  title  of 
the  assigned  propei-ty  to  the  assignor.  In  the  event  of  the 
failure  to  file  a  bond,  as  required  by  law,  the  assignee,  though 
invested  with  title,  has  no  power  or  authority  to  dispose  of 
the  property  for  the  purposes  of  the  trust,  which  would  then 
be  a  dry  trust,  merely  to  take  possession  and  hold  until  he 
should  become  qualified  and  empowered  to  dis])ose  of  it;  but 
having  accepted,  he  can  only  be  relieved  of  the  trust  and  di- 
vested of  the  estate  by  the  order  of  a  court  of  com])etent  juris- 
diction." A  trustee  ha\'ing  once  accepted  the  trust  in  any 
manner,  a  purchaser  can  not  safely  dispense  with  his  concur- 
rence in  a  sale  of  the  trust  estate,  notwithstanding  he  may 
have  attempted  to  disclaim,  and  although  he  may  have  re- 
leased his  estate  to  his  co-trustees.  All  the  trustees,  in  case 
of  several,  must  unite  in  a  disposal  of  the  trust  property,  and 
a  deed  by  two,  while  a  third  is  living,  is  not  valid.  The 
trustees  take  as  joint  tenants,  and  must  all  unite  in  the  exe- 
cution of  the  trust,  and  especially  in  a  deed  of  lands. 

§  6.  Construction  and  Efifect.  An  assignment  for  the 
benefit  of  creditors,  conveying  property  to  trustees  with  power 
to  sell  and  to  apply  the  proceeds  in  payment  of  debts,  is  an 
absolute  conveyance,  by  which  both  the  legal  and  equitable 
estate  is  divested  out  of  the  grantor  and  vested  in  the  assignee, 
subject  to  the  uses  and  trusts  in  favor  of  the  creditors.*     "  An 

1  Kingman  v.  Barton,   24  ]\Iinn.  -Wi;  Thrasher  r.  Bcntly,   59   N.    Y. 

295.  649. 

.2  ITydo  «.  Olds,  12  Ohio  St.   591;  «  Dwight  r.  Ovorton.  32  To x.  390; 

Forbes  v.    Scannell,    13    Cal.    242;  Van   Koiiren  r.  McLauglilin.  21   N. 

Brown  v.  Chamberlain,  9  Fla.   464;  J.   Eq.  163:    Brigjjs  t'.  Davis,  21  N. 

Hall  V.  Dennison,  17  Vfc.  310.  Y  574. 

«  Brcnnan  r.  Willson,    71   N.   Y. 


278  ABSTRACTS    OF    TITLE. 

assi<,'nment,"  says  Burrill/  "  is  more  than  a  security  for  the 
payment  of  debts;  it  is  an  absolute  appropriation  of  the  proj)- 
erty  to  their  payment.  It  does  not  create  a  lien  in  favor  of 
creditors  upon  property  which,  in  equity,  is  still  regardc;!  as 
tlie  assignor's,  but  it  passes  both  the  legal  and  equitable  title 
to  the  property  absolutely  beyond  the  control  of  the  assignor. 
There  remains,  therefore,  no  equity  of  redemption  in  the  prop- 
erty, and  the  trust  which  results  to  the  assignor  in  the  unem- 
ployed balance  does  not  indicate  such  an  equity."  The  title  in 
the  hands  of  tlie  assignee  is  relieved  of  none  of  its  burdens, 
but  remains  subject  to  all  existing  equities.^ 

§  7.  Conflict  of  La^vs— Foreign  Assignments.  Deeds  of 
assignment  are  governed  by  the  same  general  rules  as  other 
conveyances,  and  when  executed  in  one  State  but  including 
lands  in  another,  their  validity  and  effect  as  instruments  of 
conveyance  of  sucli  lands  must  be  determined  by  the  laws  of 
the  latter  State.^  They  have  no  extra-territorial  force,  yet  on 
]>rinciples  of  comity,  an  assignment  valid  in  the  State  where 
it  is  made,  and  where  the  assignor  resides,  will  operate  on  the 
assets  of  such  assignor  in  each  of  the  other  States.* 

§  8.  Insolvency.  A  special  procedure  is  provided  in  most 
of  the  States  for  the  distribution  of  tlie  estate  and  effects  of  in- 
solvent debtors,  and  their  subsequent  discharge  from  the  debts 
thus  satisfied.  Such  proceedings  have  the  same  general  effect, 
M'ithin  the  jurisdiction  of  the  State,  as  proceedings  under  the 
national  bankrupt  law,  and  to  which  they  bear  a  strong  anal- 
ogy. During  tlie  continuance  of  the  bankrupt  law  their  oper- 
ation is  suspended,  and  owing  to  this  and  the  infrequencj'  with 
which  the  remedy  has  been  used  but  few  instances  will  occur 
whei-e  conveyances  have  been  made  under  same.  The  exam- 
ples which  follow,  of  an  abstract  of  proceedings  under  the 
national  bankrupt  law,  will  serve  as  an  illustration  of  the 
method  of  showing  these  matters  whenever  they  may  occur. 

M   Buvrill  on  Assignments,  12.  ving't\  Paire,  10  Towa,  282;  Gardner 

"Williams  v.  Winsor,  12  R.    I.  9.  v.  Cora.  Nat.  Bank  of  Providence, 

3  Story  Conflict  of    Laws,    §   364;  95  Til.  298. 
Cutler  V.  Davenport,  1  Pick.  81;  Lo-  *Mowry  v.  Crocker,  6  Wis.  326. 


ASSIGNMENTS,    INSOLVENCY    AND    BANKRUPTCY.  279 

The  validity  of  titles  so  derived  is  especially  a  matter  of  local 
law  and  construction.     \ 

§  9.  Bankruptcy.  At  the  date  of  this  writing  there  is  no 
national  bankrupt  law,  but  numerous  transfers  under  the  oper- 
ation of  past  laws  will  be  found  of  record.  Proceedings  by 
virtue  of  the  act  of  1841  require  but  slight  notice,  the  rights 
of  all  parties  thereunder  havnng  become  permanently  estab- 
lished by  the  effluxion  of  time.  Proceedings  and  convey- 
ances under  the  act  of  1807  should  be  shown  in  greater 
detail,  yet  even  here  only  a  brief  synopsis  seems  necessary. 

§  10.  Jurisdiction  and  Practice.  By  the  bankru])t  act  of 
1867,'  the  District  Courts  of  the  United  States  have  original 
and  exclusive  jurisdiction  and  power  over  all  "acts,  matters, 
and  things  to  be  done  under  and  by  virtueof  the  bankruptcy," 
and  are  authorized  by  summary  j^roceedings,  to  administer 
all  the  relief  which  a  court  of  equity  could  administer  under 
the  like  circumstances  upon  regular  proceedings.^  A  revisory 
jurisdiction  is  further  conferred  upon  the  federal  circuit 
courts,  but  all  initiate  proceedings  are  confined  to  the  dis- 
trict courts,  which,  when  sitting  as  courts  of  bankruptcy,  are 
to  be  regarded  as  separate  courts,  exercising  powers  and  a 
jurisdiction  distinct  from  their  powers  as  district  courts  as 
originally  constituted.*  Such  courts  may  exercise  extra-terri- 
torial jurisdiction  in  collecting  the  estate  and  adjusting  the 
claims  of  the  creditors  of  the  bankrupt,  but  in  all  matters  of 
controversy  touching  the  rights  of  the  assignee  under  the 
assignment,  when  the  subjects  in  dispute  are  of  a  local 
nature,  the  rights  of  parties  can  only  be  determined  by  actions 
in  local  courts.* 

§  11.  Classification — Procedure. — Bankruptcy  is  either 
voluntary,  when  precipitated  by  the  debtor's  own  act;  or  in- 
voluntary, when  produced  by  the  action  of  the  creditors,  the 
effects  upon  the  property  of  the  bankrupt  being  the  same 
in  either  case.  In  both  instances  it  is  initiated  by  the  filingof 
a  ])ctition,  and  consummated  by  adjudication  and  assignment. 

'  14  Stat,  at  Large,  520.  Voorhees  v.  Frisbic,  25  Mich.  476. 

2  Matter  of  Wallace,   Deady,  433;  ^  Morris  Case,  1  Abb.  U.  S.  514. 

Newman  v.   Fi>her,   37   Md.     259;  «  WhilriJ-e  r.  Taylor,  GG  N.  C.  273. 


2S0  ABSTRACTS   OF    TITLE. 

When  after  adjudication  and  before  any  assignment  has  been 
made,  a  composition  is  effected  and  the  bankrupt  discharged, 
there  seems  no  good  reason  wlij  the  abstract  should  be  en- 
cumbered by  details  which  are  immaterial  to  the  title,  and 
such  proceedings  may  be  safely  omitted.' 

§  12.  Nature  and  Eflfect  of  Bankruptcy.  A  person  adju- 
dicated a  bankrupt  is  deemed  a  bankrupt  from  tlie  day  on 
which  he  files  his  petition,  and,  from  the  moment  the  petition 
is  filed,  so  far  as  his  property  is  concerned,  he  is  considered 
as  civilly  dead.  During  the  interval  existing  between  the 
filing  of  the  petition  and  the  appointment  of  the  assignee,  a 
condition  of  things  exists  not  unlike  that  before  the  appoint- 
ment of  an  administrator  in  the  case  of  a  person  dying  intes- 
tate, no  one  being  authorized  to  dispose  of  or  assign  his 
assets.^  A  voluntary  bankrupt  is  intrusted  with  tlie  care  of 
his  estate  before  an  assignee  is  chosen,  as  a  sort  of  trustee, 
and  in  involuntary  proceedings  a  warrant  issues  to  the  U.  S. 
marshal,  who,  as  the  messenger  of  the  court,  takes  possession 
provisionally  of  all  the  bankrupt's  property.^ 

§  13.  Bankruptcy  Proceedings — How  shown.  As  in  chan- 
cery proceedings,  only  a  brief  outline  of  the  procedure  of  the 
bankruptcy  court  can  well  be  shown  in  the  abstract,  which  in 
cases  of  this  nature  is  rather  an  index  than  a  transcript. 
Sufficient,  however,  should  be  given  to  show  the  apparent 
regularity  of  the  proceedings,  and  the  degree  of  detail  may 
be  regulated  by  the  wishes  of  tlie  client.  After  confirmation, 
a  sale  by  the  assignee  stands  in  the  same  relative  position, 
with  respect  to  irregularities,  etc.,  in  anterior  proceedings,  as 
other  sales  in  chancery,  and  such  anterior  proceedings  require 
no  greater  elaboration.     With  such  changes  as  may  be  neces- 

*  Tliis  is  on  the  principle  that  the  s'tion  over  his  effects;  the  adjudica- 

matter  possesses  no  more  force  than  tion    being  to  deprive   him  of  the 

asatisfied  judgment,  which  is  neither  power,  while  the  discharge  restores 

a  lien  nor  a  cloud,  but  only  a  clog  same. 

when  placed  upon  an  abstract.  Many  ^  Johnson  v.  Geisriter,  26  Ark.  44. 

examiners  prefer,  however,  to  brief-  ^  In  re  MiiUer,  Deady,  513;    In  re 

ly  allude  to  the  filing  of  the  petition  Harthill,  4  Ben.  448;    Williams  v. 

and  discharge,  as  the  bankrupt,  dur-  Merritt,  103  Mass.  184;  TnreCarow, 

ingthisper  odjhas  nopowerofdispo-  41  How.  Pr.  (N.  Y.)  112. 


ASSIGNMENTS,    INSOLVENCY   AND    BANKKUPTCT.  281 

sary  to  suit  the  exiojencies   of  particular  cases,  the  following 
will  afford  a  sufficient  example: 

TJ.  S.  District  Courts 
Northern  District  of  Illinois. 
In  the  matter  of  the  estate  \       Case  No.  1000. 

of  Andrew  Smithy  >•      Petition  filed  Nov.  10,  1868. 

Bankrupt.  )       Schedule  of  assets  and  lia- 

lilities  mentions,  [here  set  out 
so  much,  of  the  real  estate  described  as  is  covered  hy  the 
caption  of  the  abstract :  or,  if  not  mentioned,  say:  does  not 
tnention  property  in  question.']  Adjudication  entered  Nov. 
16,  1868.^  Hohert  E.  Jenkins  appointed  assignee  Nov.  16, 
1868. 

Petition  of  said  assignee,  filed  Dec.  1, 1868,  praying  leave 
to  sell  assets  of  said  estate  at  pahlic  auction,  etc. 

Order  entered,  Dec.  ^,  1868,  authorising  said  assignee  to 
sell  assets  as  prayed  for  in  said  petition,  after  giving  three 
weeks  public  notice  hy  publication.,  etc.,  and  ten  days 
notice  by  mail  to  creditors. 

Assignee- s  rep>ort  of  sale,  with  proof  of  publication  and 
notice  of  sale  attached,  filed  P'ebruary  1,  1869,  shoiving  sale 
of  [here  set  out  the  descrijytion  of  property  sold  if  coverci 
by  the  search^  or,  if  only  one  piece  is  named  in  schedule,' 
or,  if  all  tlie  property  named  in  schedule  is  sold  to  one 
person,  say:  the  premises  described  in  schedule  of  assets  and 
above  set  forth']  to  Alexander  Hamilton  for  $10,000. 

Assignee's  report  of  sale  approved  and  sale  confirmed 
February  10,  1869. 

The  subsequent  proceedings,  relative  to  the  discharc^e  of 
the  bankrupt  are  immaterial,  as  he  has  now  been  divested  of 
all  title   to   the  land   in   question;    but  should  the   examiner 

^  In  case  there  should  have  been  sist  of  the  dates,  severally,  of  the 
a  composition  and  subsequent  dis-  entering  and  filing  of  the  petition 
charge,  the  notes  of  same  may,  in  for  composition  meeting;  the  Keg- 
the  examiner's  discretion,  be  entered  ister's  report  of  composition,  and 
immediately  following.  Inasmuch  decree  confirming  same;  the  Reg- 
as  such  proceedings  shed  noliglit  on  ister's  report  of  couipliiince  and 
the  title  th«^y  are  not  inserted  in  the  final  discharge, 
form  above  given.     They  would  con- 


282  ABSTRACTS    OF   TITLE. 

desire  to  add  a  symmetrical  close  toliis  synopsis  of  the  action 
of  the  bankruptcy  court,  he  may  add: 

Petition  for  discharge  filed  March  1^  1869. 
Register's  final  report  filed  March  10,  1869. 
Discharge  entered  and  issued  May  1,  1869. 

§  14.  The  Assignment.  The  synopsis  given  in  the  last 
section  is  taken  from  the  rolls  of  the  district  court,  and  shows 
the  general  course  of  the  proceedings.  The  formal  instru- 
ment, however,  by  which  the  assignee  takes  the  legal  title,  is 
an  assignment  by  the  Register,  which  is  duly  recorded  as  a  title 
deed  in  the  registry  of  deeds  of  the  county  wlierein  tlie  land 
is  situate,  and  in  the  abstract  may  be  shown  as  follows  : . 


Homer  JY.  Ilillard,  one  of  - 
the  Registers  in  Bank- 
ruptcy of  the  District 
Court  of  the  TJ.  S.  for 
the  Northern  District 
of  Illinois, 
to 

Rohert  E.  Jenkins,  as- 
signee of  Andrew  Smith, 
Bankrupt. 


Assignment. 
Dated  Nov.  16,  1868. 
Recorded  Nov.  17,  1868. 
Book  691,  -page  625. 
Conveys  and  assigns  all  the 
estate,    real    and  personal,    of 
said  Andrew  Smith,  hankrupt, 
including   all  the  property,  of 
whatever  kind,  of  lohich  he  was 
possessed,  or   in   which  he  was 
interested  or  entitled  to  have,  on 
Nov.  10,  1868,  with  all  his  deeds,  hooks  and  papers  relating 
thereto,  excepting  such  property  as   is  exempted  from   the 
operation  of  this  assigmnent  hy  the  provisions  of  Sec.  5,01^5, 
of  title  61,  Bankruptcy,   of  the  Revised  Statutes   of  the 
United  States. 

In  trust,  for  the  uses  and  purposes,  with  the  poxoers,  and 
subject  to  the  conditi,ons  and  limitations  set  forth  in  said  act. 

This  presents  substantially  the  contents  of  the  assignment, 
and  conveys  all  the  information  necessary  to  be  shown  in 
the  abstract,  but  should  the  examiner  so  desire  he  may  set 
forth  the  instrument  in  greater  detail. 

§  15.  Assignee's  Deed.  In  order  to  present  this  synopsis 
of  bankruptcy  proceedings  in  a  connected  manner,  and  as  it 
should  appear  in  the  abstract,  it  is  deemed  advisable  to  give 


ASSIGNMENTS,    IXSOLVENCT   AND    BANKRUPTCY.  283 

the  assignee's  deed  in  this  place  rather  tlian  wliere  it  more 
properly  belongs,  in  the  chapter  devoted  to  official  convey- 
ances. These  deeds,  like  other  conveyances  by  trustees,  are 
usually  very  long  and  prolix,  and  considerable  discriuiinatiuii 
must  be  exercised  in  preparing  the  abridgment,  in  order  to 
present  everything  that  can  shed  light  on  the  transaction  and 
yet  avoid  burdening  tlie  al)straet  with  unnecessary  pai-ticu- 
lars  or  useless  verbiage.  The  following  form,  prepared  from 
a  very  long  and  technical  deed,  will  serve  to  explain  the 
meaning  of  these  remarks  and  illustrate  the  methods  de- 
scribed: 


Hohert  E.  Jenl'his^  Assignee 
in  Banliruptcy  of  the  Es- 
tate and  Effects  of  Andrew 
Smith,  Bankrujgt, 
to 
Alexander  Hamilton. 


Assignee's  Deed} 

Dated  Feb.  10,  ISGO. 

Recorded  Feb.  12.  1SG9. 

Book  100,  page  200. 

Sets  forth  that,  in  accord- 
ance with  the  jyrovisions 
of  the  Revised  Statutes  of 
the  United  States,  Title  ''''Bankruptcy^''  a  petition 
was  filed  in  the  District  Court  of  the  United  States  for 
the  Northern  District  of  Illinois,  on  JVov.  10,  ISGS,  by 
said  Andrew  Smith,  and  on  Nov.  IG,  18GS,  said  Andrew 
Smith  was  duly  adjudged  and  declaimed  bankrupt;  and  on 
Nov.  IG,  18G8,  said  Robert  E.  Jenkins  loas  duly  appointed 
assignee  of  the  estate  and  effects  of  said  bankrupt  by  II.  N. 
Ilibbard,  one  of  the  Registers  in  Bankruptcy  of  said  Court, 
which  said  appointment  was  thereaftei  duly  approved  and 
confirmed  by  said  Court,  and  on  Nov.  16,  1S6S,  said  Register 
conveyed  and  assigned  to  said  Jenkins,  as  such  assignee,  all 
the  estate,  real  and  personal,  of  said  bankrupt,  ijicluding  all 
the  property  of  whatsoever  kind,  of  whicli  said  bankrupt  was 
p>ossesscd,  or  in  which  he  was  interested,  or  which  he  loas  en- 
titled to  have  on  Nov.  10,  ISGS  {excepting  only  such  property 

'  This  is  an  abridgrnent  of  a  deed  needs  no  other  recitals,  and  will  be 

under  the  law  of  1867.     Under  the  good,  if  in  other  respects  sulficient, 

law   of   1841  a  deed    containing  a  the  same  as  a  deed  made  by   the 

copy  of  the  decree  of  bankruptcy  and  bankrupt  bi'fore   the  adjudication: 

of  the  appointment  of  the  assignee,  Ryder  v.  I\u:?h,  102  III.  33S. 


281  ABSTRACTS    OF    TITLE. 

as  is  excepted  hi/ the  5fiJi.5th  section  of  said  Revised  Statutes) 
TJmt  said  lankrupt,  Andreio  Smith,  appears  to  have  been, 
on  said  last-mentioned  date,  possessed  of  or  entitled  to  an  in- 
terest in  real  estate  and  property  hereinafter  mentioned. 
And  said  assignee  having  first  given  notice,  ly  publication 
once  a  weelc,for  three  consecutive  loeeks,  pursuant  thereto, 
on  Feb.  1,  1869,  offered  for  sale,  and  sold  said  real  estate 
and  property  at  public  auction,  and  at  said  sale,  second 
party  was  the  highest  bidder,  and  became  the  purchaser  there- 
of for  %10,000.00;  lohich  sale  was,  on  Feb.  10, 1869,  approved 
and  confirmed  by  said  Court,  and  said  Court  did,  on  the 
day  and  year  last  named,  order  and  direct  said  assignee  to 
execute  and  deliver  to  said  second  party  a  deed  for  the  real 
estate  so  sold,  conveying  the  same  to  him,  in  accordance  with 
the  terms  of  said  sale. 

Noio,  therefore,  in  consideration  of  the  premises,  and 
%10,000.00,  remises,  releases,  sells,  conveys  and  quitclaims,  all 
the  right,  title,  interest,  estate,  claim  and  demand  of  said 
bankrupt,  which  he  had  on  Nov.  10, 1868,  and  of  said  Robert 
E.  Jenkins,  as  assignee  aforesaid,  in  and  to  the  following 
described  real  estate,  to  wit:  \IIere  set  out  the  description 
of  the  property  conveyed,  employing  the  language  of  the 
deed.l  with  all  the  improvements,  rights,  privileges  and 
appurtenances  thereto  belonging,  but  subject  to  all  unpaid 
taxes  and  tax  liens,  and,  to  all  liens  and  incumbrances, 
tinless  expressly  excepted,  released  or  discharged  by  the  orders 
of  said  Court,  concerning  said  sale,  and  subject  to  all  the 
terms  and  conditions  of  said  sale. 

Certificate  of  acknowledgment,  dated  Feb.  10,  1869. 

The  title  conveyed  by  the  assignee  is  no  better  than  that  liehl 
by  the  bankrupt,  and  the  purchaser  takes  it  charo^ed  with  all 
the  equities  to  which  it  was  subject   in   his  hands,^   and  bur- 

*  Walker  r.  Miller,  11  Ala.  1067;  notice,  free  from  latent  equities,  e'c, 
Stow  V.  Yarwood,  20  111.  497;  Har-  but  as  a  mere  volunteer,  standing  in 
din  V.  Osborne,  94  III.  571.  In  this  the  shoes  of  the  bankrupt,  as  re- 
case,  the  court  held  that  an  assignee  spects  the  title,  and  having  no 
in  bankruptcy  does  not  take  the  title  greater  rights  in  that  regard  than 
to  the  property  of  the  bankrupt  as  the  bankrupt  himself  could  assert, 
an      innocent    purchaser      without  The  bankrupt  had,  prior  to  the  time 


ASSIGNMENTS,    IXSOLVEXCT    AND    BANKKUPTCY. 


285 


dened  with  all  liens,  bj'  inorts^age  or  jud^Miient,  which  existed 
against  him  at  the  time  of  the  adjudication. 

§  16.  Discharge  in  Bankruptcy.  Tlie  effect  of  an  adju- 
dication in  l>ankru])tcy  being  to  deprive  the  person  adjudged  a 
banki'upt  of  his  power  to  take  or  convey  property  while  rest- 
ing uuiler  such  sentence,  it  is  proper  that  his  restoration 
to  civil  rights  should  also  be  shown  whenever  the  abstract 
discloses  liim  in  the  character  of  a  grantor  or  grantee  after 
such  adjudication.  This  may  be  accomplished  by  a  sim])le 
note  of  the  fact.  Where  a  composition  has  been  effected, 
such  note  would  be  given  in  connection  with  a  brief  reference 
to  tlie  petition  and  proceedings  in  the  bankruptcy  court. 
AVhere  the  debtor's  property  has  passed  from  him  to  the 
assignee,  and  the  subject  of  the  examination  consists  of  prop- 
erty in  which  such  bankrupt  has  acquired  an  interest  since 
the  date  of  the  assignment,  it  may  be  shown  as  an  independ- 
ent circumstance,  its  legal  import  being  merely  to  show  the 
removal  of  disability;   thus, 


he  was  adjiidfrod  a  hankrupl",  con- 
veyed land,  but  the  deed  remained 
unrecorded,  and  the  court  held,  that 
no  title  would  pass  to  the  assio-nee 
as  against  the  purchaser  holding 
under  the  prior  unrecorded  deed. 
"Suppose,"  said  AValker,  C.  J., 
"the  debts  had  been  paid  without 
the  sale  of  the  land,  does  any  one 
suppose  the  bankrupt  could  have 
held  it  against  his  former  grantee, 
whether  or  not  his  grantee  had  re- 
corded his  deed  ?  Where  the  pur- 
chaser had  paid  his  money,  and  re- 
ceived the  conveyance,  his  equities 
arc  surely  equal  to  that  of  other 
creditors.  His  deed  operated  to  con- 
voy to  him  the  title,  and  the  cred- 
itoi-s  have  advanced  nothmg  to  pro- 
cure a  lien  on  the  land,  and  the  ap- 
pointment only  operated  as  a  trans- 


fer of  wliatcver  interest  the  bank- 
rupt held  for  the  benefit  of  his  cred- 
itors.'' But  the  learned  judge 
further  observes,  "  If,  however,  in 
such  a  case  the  assignee  were  to  soli 
and  convey  the  land  to  an  innocent 
purchaser  without  notice,  and  he 
were  to  place  his  deed  on  record  be- 
fore that  of  the  prior  purchaser,  a 
ditferent  case  would  be  presented." 
In  the  case  of  Holbrook  v.  Dicken- 
son, 56  111.  497,  where  the  assignee 
had  sold  the  land  under  a  similar 
state  of  facts,  it  was  hold  that  the 
prior  piH'chaser  could  not  set  up  or 
show  his  unrecorded  deed  to  defi-at 
the  title  of  tlie  assignee's  grantee, 
and  this  is  the  generally  received 
doctrine  resulting  from  the  plain 
construction  of  the  recording  acts. 


286 


ABSTRACTS    OF    TITLE. 


In 

In  the  matter  of  the 
hank/nijptcy 

of 
James  L.  Sherman. 


the  U.  S.  District  Court, 
Northern  Dif^trict  of  Illinois. 
^       Case  No.  3529. 
I        Voluntary  Petition. 

Filed  December  19,  1877. 
Discharge      entered     and 
issued     to    said     Bankrupt^ 
February  28,  1879. 


CHAPTER  XIX. 


AGREEMENTS  FOR  CONVEYANCE. 


§     1.  Laml  contracts. 

2.  Relation  of  parties  under  land 

contracts. 

3.  Effect  and  operation. 

4.  Nature  and  requisites. 

5.  As  affected  by  recordino'  acts. 

6.  Construction    of     land    con- 

tracts. 


§    7.  Formal  parts. 

8.  Ass  gnnient  of    the   contract. 

9.  Performance  —  Sufficiency  of 

deed  and  title. 

10.  Bond  for  deed. 

11.  Agreement  for  conveyance  by 

will. 


§  1.  Land  Contracts.  Land  contracts,  or  ai^rGonients  to 
deed,  are  of  frequent  occurrence  on  the  records,  and  occasion- 
ally bonds  for  the  same  purpose  will  be  found,  though  these  lat- 
ter are  now  practically  obsolete.  Should  the  contract  be  execu- 
tory its  contents  should  be  set  forth  with  considerable  minute- 
ness, ])articularly  such  ]iarts  as  relate  to  the  parties,  the  sub- 
ject-matter, and  the  conditions  of  conveyance.  If,  on  the 
contrary',  the  contract  has  been  consummated  by  deed,  a  passing 
allusion  to  it,  as  part  of  the  chain  of  title,  will  l)e  siitHcient. 
Where  the  subsequent  deeds  do  not  show  a  substantial  com- 
pliance, a  full  synopsis  may  become  material,  although  the 
contract  has  beeii  executed,  and  the  examiner  should,  as  a 
precautionary  measure,  first  satisfy  liimself  on  this  ])oint  be- 
fore abstracting  the  instrument.  In  executed  contracts,  how- 
ever, this  is  not  of  vital  importance,  for  acceptance  of  a  deed 
ordinarily  merges  any  provisions  of  the  contract  of  sale  which 
are  ditl'erent  from  the  deed.' 


'  Davenport  r.  Whisler,  4G  Iowa,  ject  to  large  qualification.  Tlie  act- 
287;  Bull  J'.  Willard,  9  Barb.  641;  ual  contract,  as  shown  by  the  agrree- 
Joues  V.  Wood,  16  Pa.  25.  This  is  mont,  will  still  lieconipi>tont,  where 
the  accepted  doctrine,  yet  it  is  sub-       through  fraud,  inadvorteno;,  or  mis- 

(287) 


288  ABSTRACTS    OF    TITLE. 

§  2.  Relation  of  Parties  under  Land  Contracts.  The  rela- 
tion between  the  ])artics  to  an  ordinary  contract  for  the  con- 
veyance of  land  npon  the  future  payment  of  the  purchase 
monej'',  is  analogous  to  that  of  equitable  mortgagor  and  mort- 
gagee, the  vendor  holding  tlie  legal  title  as  security  for  the 
unpaid  purchase  money,  which  security  is  essentially  a  mort- 
gage interest.  The  vendee  has  an  equity  of  redemption,  and 
the  vendor  a  correlative  right  of  foreclosure  upon  deftinlt  in 
the  payments.'  In  this,  as  in  other  cases,  the  mortgage  is 
tlie  incident,  the  debt  the  principal,  and  the  vendor  has  no 
further  interest  except  to  the  extent  of  the  security  the  mort- 
gage affords  for  his  debt.^ 

§  3.  Effect  and  operation  of  the  Contract.  The  effect  of 
a  valid  contract  for  the  conveyance  of  land,  is  to  vest  in  the 
vendee  the  equitable  estate  in  the  land,  leaving  the  legal  title 
in  the  vendor  as  a  mere  lien  or  security  for  the  unpaid  pur- 
chase mone3^'  The  vendor,  in  such  case,  is  simply  a  trustee 
having  an  interest  in  the  proceeds  but  not  in  the  land,  and 
this  interest,  upon  his  decease,  would  pass  to  his  personal 
representatives  and  not  to  his  heirs.  The  heirs  would,  it  is 
true,  take  the  legal  title  by  descent,  but  only  as  it  was  vested 
in  the  ancestor,  which  was  as  a  mere  security  for  the  debt. 
The  debt  being  due  to  the  administrators  or  executors  of  the 

take,  a  different  deed  has  been  de-  nal  and  manifest  intention:   Elliot  v. 

livered:     Snell    v.  Insurance  Co.,  98  Sackett,    U.  S.  Sup.  Ct.    (1883).     It 

U.  S.  85,    and    cases  cited.     Where  will  thus  be  seen  that  in  case  of  dis- 

there  has  been,  by  mutual  mistake,  crepancy  or  repugnancy  the   agree- 

a  failure  to  embody  in  the  deed  the  ment  should  be  fully  abstracted  or 

actual  agreement  of  the  parties  as  at  least  sufficient  thereof  given  with 

evidenced  by  the  prior  written  agree-  reasonable  context  to  show  the  re- 

ment,  and  the  meaning  of  the  prior  pugnancy. 

agreement  is  clear,  and  nothing  has  i  Church  v.  Smith,  39  Wis.  492; 

occurred  between  the  parties  after  it  Button  v.    Schroyer,    5    Wis.    598; 

was  signed  and  delivered  to  vary  its  King  v.  Ruckman,  21  N.  J.  Eq.  599; 

terms,  except  the   mere  fact  of  the  Baldwin  v.   Pool,  74  III.  97;    Fitz- 

delivery  of  the  deed,  and  the  deed  hugh  v.  Maxwell,   34    Mich.    138; 

not  effecting  what  both  parties   in-  Dew  v.  Bellinger,  75  N.  C.  300. 

tended  by  the  actual  contract  which  2  Strickland  v.  Kirk,  51  Miss.  795. 

thev  had  made,  a  court  of  equity  will  a  j^gg^j  j,  Lukens,  44  Pa.  200;  Ca- 

interfere    and    reform  the   deed  so  rj-  v.  Whitney,  48  Me.  516;   Miller 

driven  in  accordance  with  the  origi-  t?.  Corey,  15  Iowa,  166. 


AGREEMENTS  FOR  CONVEYANCE  289 

vendor,  and  as  tlie  lien  is  considered  to  be  held  l)j  the  heirs 
in  trust,  and  sin)ply  as  a  pledge  or  security  for  its  payment, 
oh  payment  of  the  debt,  the  heirs  would  be  compellable  in 
equity  to  execute  the  trust  by  the  conveyance  of  the  title, 
while  the  purchase  money  would  go  to  the  personal  repre- 
sentatives.' The  equity  is  a  proper  subject  of  devise  by  the 
vendee  and  will  descend  to  his  heirs  the  same  as  realty,  and 
in  them  is  vested  the  equity  of  redemption.^ 

§  4.  Nature  and  Requisites.  The  Statute  of  frauds,  sub- 
stantially re-enacted  in  all  the  States,  provides  that  no  action 
shall  l)e  brought  to  charge  an}'  person  upon  any  contract  for 
the  sale  of  lands,  unless  such  contract  or  some  note  or  memo- 
randum thereof  shall  be  in  writing,  and  signed  by  the  party  to 
be  charged  therewith,  or  some  other  person  thereunto  by  him 
lawfully  authorized,  and  where  there  is  no  exception  contained 
in  the  statute  the  courts  will  not  create  any."  No  special 
form  is  required  as  an  evidence  of  such  contract,  and  courts 
scetn  inclined  to  allow  a  wide  latitude  in  this  particular.*  The 
statute  allows  the  memorandum  to  be  siofned  by  the  vendor  or 
his  agent,  yet  it  seems  that  if  made  by  an  agent  it  should 
still  be  in  the  principal's  name.'*  If  the  terms  of  the  contract, 
the  consideration,  the  subject-matter  of  the  sale,  etc.,  are  stated 
with    reasonable    certainty,    the    memorandum    is    sufficient. 

Form  is  not  important,  nor  need  it  be  under  seal,"  the  one 
indispensal'.le  requisite  being,  that  it  be  in  writing  and  signed 
by  the  vendor  or  his  agent;'  and  the  power  to  the  agent,  unless 
provided  otherwise  by  statute,  m'dy  be  given  orally.'  It  is, 
however,  a  f\imiliar  rule  in  this  bi'anch  of  the  law,  that  a  con- 

'  Gerard's  Tit.  to  Real   Est.  472;  Cli.)  597. 
Johnson  t;.  Corbett,  11  Paifje,  2C5;  *  Hairston  r.  .landon,  42  Miss.  380 

Moore  v.  Buitows,   34    Barb.    17o.  *Bemis  r.  Becker,  1  Kan.  226. 

The  agreement  to  deed,  above  i-e-  "Morgan  v.  Bergen,  3  Neb.  209. 

fe)Ted  to,  is  very  different  from  the  "  Moss    v.    Atkinson,   44  Cal.   3; 

contract  of  purchase  or  conditions  of  Ruttenberg  v.  Main,  47  Cal.  213. 
sale,  under  the  English  sj'stem  of  'Haydock  r.  Stow,  40  N.  Y.  363. 

conveyancing.     Tlie  Ibrmer  contcm-  ^Huttonbcrg  r.  Main,  47  Cal.  213; 

plates  a  sale  already  made,  the  lat-  McWhorter  v.  McMahan,  10  Paige, 

ter  a  sale  to  be  made.  386. 

*  Broome  v.  Monck,  10  Ves.  (Eng. 
19 


290  ABSTRACTS   OF   TITLE. 

tract  which  equity  will  specificallj  enforce,  must  be  certain 
in  its  terms,  and  the  certainty  required  has  reference  both  to 
the  description  of  the  property  and  the  estate  to  be  conveyed. 
Uncertainty  as  to  either  not  capable  of  being  removed  by  ex- 
trinsic evidence,  will  invalidate  the  contract.*  Less  particular- 
ity is  required,  however,  than  in  case  of  actual  conveyances 
of  the  same  land,  and,  as  a  rule,  any  description  of  the  property 
will  be  sufficient  provided  it  be  such  as  to  enable  a  surveyor 
to  locate  the  land.^  Every  contract  which  gives  no  means  of 
identifying  the  boundaries  of  the  land  sold;^  which  furnishes 
no  information  regarding  the  terms  of  the  contract;*  or 
which  by  faulty  or  imperfect  description  renders  the  location 
of  the  property  uncertain,*  will  be  incapable  of  specific  en- 
forcement. 

§  5.  As  affected  by  the  Recording  Acts.  Interests  in  land 
acquired  through  contracts  of  purchase  fall  within  the  pro- 
tection of  the  recording  acts.  Therefore,  altliough  another 
may  be  interested  as  a  part  owner  of  land  sold  by  contract, 
if  the  record  fails  to  show  that  interest,  and  shows  the  entire 
title  in  the  vendor,  the  purchaser  from  the  apparent  owner  of 
record,  without  notice  of  the  real  facts,  will  hold  the  title,  and 
so  of  his  assignee.* 

§  6.  Construction  of  Land  Contracts.  A  contract  for  the 
sale  of  land  is,  for  most  purposes,  regarded  in  equity  as  if 
already  specifically  executed.'  When  consisting  of  two  in- 
struments they  will  be  construed  together  and  effect  given  as 
of  one  entire  instrument.*  Time,  unless  s])ecifically  made  of 
the  essence  of  the  contract,  will  not  be  construed  to  the  dis- 

*  Whelan  v.  Sullivan,  102  Mass.  to  some  extrinsic  fact  or  instrument 
204;  Peters  v.  Phillips,  19  Tex.  74.  by  means  of  which  the  consideration 

^  White??.  Hermann,  51  111.  243.  and    the  land  can  be  known  with 

*  Whelan  v.  Sullivan,  102  Mass.  sufficient  certainty:  Washburn  v. 
204;  Holmes  v.  Evans,  48  Miss.  247;  Fletcher,  42  Wis.  152. 

*  McGuire  v.  Stevens,  42  Miss.  724;  ^  Gigos  v.  Cochran,  54  Ind.  593. 
The  writing  relied  upon  to  establish  *  Allen  v.  Woodruff,  96  111.  11. 
such   a  contract  need  not  describe  '  King  v.  Ruckman,  21  N.  J.  Eq. 
either  the  consideration  or  the  lands  599. 

which  are   the  subject  of  the  sale,  ^Beman  v.  Green,  1  Duer  (N.  Y.), 

otherwise  than  by  a  reference  therem      3S2. 


AGREEMENTS  FOR  CONVEYANCE.  291 

advantatje  of  tlie  vendee,  and  a  contract  which  uses  the  ordi- 
nary terms  to  express  the  time  for  the  payment  of  the 
purchase  money,  without  any  express  intention  that  such 
time  is  material,  does  not  make  it  so/ 

§  7.  Formal  Parts.  The  examiner  will  note  the  usual  in- 
cidents of  dates,  parties,  property,  etc.,  as  in  other  instru- 
ments, and  in  addition,  the  methods  of  transferCtud  conditions 
and  stipulations  annexed  to  the  contract,  if  ?iny.  Though  or- 
dinarily executed  by  both  parties,  this  is  not  a  requisite,  and  an 
executory  contract  is  valid  and  binding  and  can  be  as  eflect- 
ively  enforced  by  the  vendee,  if  signed  by  the  vendor  alone.'' 
It  is  advisable,  however,  particularly  where  the  contract  con- 
tains mutual  covenants  or  stipulations,  to  note  a  divergency 
in  this  respect.  The  following  is  submitted  as  a  synopsis  of 
the  salient  features  of  an  ordinary  executory  contract: 


Alfred   Burwell^ 

to  {or,  vnth) 
Charles  Dohbson. 


Agreement    to    Convey     [or, 
Land  Contract.'] 
Dated  March  i,  188S. 
Recorded  March  3.  1S83. 
Book  210,  jyage  590. 
First  party,  on  payment  of   $500.00,   agrees  to  convey  to 
second  party  hj  good  and  sufftoieiit  warranty  deed,  the  fol- 
lowing described  premises   situated  in   the  town  of  Mount 
Pleasant,  Racine  County,  Wis,,  described  as  [here  set  out  the 
description]  fi'ee  from  all  liens  and  incumbrances,  except  [Jiei'e 
set  out  incumhrance  recitals,  if  any.] 

Second  party,  in  consideration  of  the  foregoing,  agrees  to 
pay  said  sum  of  $500.00  [in  manner  foUoioing,  to  wit,  etc.; 
state  the  terms  briefly]. 

Time  to  be  the  very  essence  of  the  contract. 
Fiirther  mutually  agreed  that  said  second  party  shall  have 
no  right  to  the  possession  of  said  premises  as  purchaser,  uiitil 
after  full  payment  of  purchase  money,  and  that  he  takes  same 
as  tenant  from  said  first  party  until  the  last  pay  ment  hasheen 
made. 

Executed  by  both  parties  and  acknowledged  by  them  March 
1, 1883. 

»  Reed  v.  Jones,  8  Wis.  392.  458;  Ewins  r.  Gordon,  49  N.  H.  444. 

^  Vassault  v.    Edwards,   43    Cal. 


202  ABSTRACTS    OF   TITLE. 

§  8.  Assignment  of  the  Contract.  In  the  assli^n merit  of 
an  executory  contract  for  the  sale  of  latid,  there  is  no  iiri])]ied 
covenant  on  the  part  of  the  assignor  of  title  to  the  land  in  the 
vendor;  all  that  can  be  impdied  is  a  warranty  that  the  assignor 
owned  the  contract  and  had  the  right  to  assign  it,  and  tliat  the 
signatures  tliereto  are  genuine.'  Such  assignments  are  usually 
very  brief  and  informal,  and  consist  of  a  bare  recital  of  the  fact 
of  assignment.  Whether  appended  to  the  original  or  made  by 
a  separate  instrument,  they  should  be  attended  by  the  same 
solemnities  relative  to  execution,  etc.,  as  were  necessary  in  case 
of  the  original,  and  shown  in  the  abstract  as  a  separate  link  in 
the  ciiain.  The  effect  of  such  an  assignment  is  to  convey  to 
the  assignee  all  the  interest  of  the  assignor  therein,  and  it 
entitles  him  to  demand  and  receive  a  conveyance  from  the 
vendor  or  his  heirs  upon  payment  of  the  purchase  money  due 
hereon.  lie  takes  it  subject  to  all  tlie  equities  existing 
against  his  assignor,  and  is  entitled  to  all  the  beneficial  inci- 
dents.'' The  delivery  of  a  contract  for  the  purchase  of  land  by 
the  purchaser  to  one  to  indemnify  him  against  loss  by  becoming 
a  guarantor  for  the  purchaser,  without  any  written  assignment 
thereof,  constitutes  an  equitable  mortgage,  and  a  subsequent 
written  assignment  to  another  who  has  no  intei'est  in  the  same, 
and  where  no  words  of  conveyance  are  used,  would  be  inoper- 
ative.* A  written  assignment  of  a  deed  or  contract  for  the 
conveyance  of  land  is  not  necessary  to  the  creation  of  an  equi- 
table mortgage,  and  the  only  effect  of  such  written  assign- 
ment is,  that  when  the  instrument  and  assignment  are  re- 
corded, they  will  afford  constructive  notice  of  the  mortgagee's 
rights,  and  also  be  evidence  of  the  fact  of  assignment  in  case 
of  a  dispute.*     The  doctrine  of  equitable  mortgages  by  deposit 

^  Thomas  v.   Bartow,   48    N.    Y.  see  Story  Eq.   Jur.  §  1020;  2  Wash. 

193.  Real  Prop.  82;  Mandevillew.  Welch, 

-Tompkins  v.  Seely,  29  Barb.  212;  5  Wheat    277. 

CromwelU.  Fire  Ins.  Co.  44  N.  Y.  ■'Chase  v.  Peck,   21    N.    Y.    584; 

42;  Gerard's  Titles,  475;    Reeves  v.  Jarvis  v.  Dntcher,  16  Wis.  307;    Al- 

Kmiball,  40    N.  Y.  299;    Parmfy  t>.  lenr.  Woodrntf,  96  III.  11;     Hal!?;. 

Buckley,  103  111.  115.  McDnflF,  24  Me.  311;  Mounce  v.  Bey- 

3  Allen  t).  Woodruff,  96  111.  11;  and  ers,  16  Ga.  469. 


AGREEMENTS  FOR  CONVEYANCE.  293 

of  title  deeds  does  not  at  present  meet  with  inncli  favor  in  this 
conn  trj^,  however,  and  strict  proof  of  notice  is  required  from  the 
equitable  mortgagee  to  bar  the  rights  of  subsequent  purchasers 
or  incumbrancers/  while  in  several  States  the  doctrine  does 
not  prevail  at  all.^ 

§  9.  Performance — SufBciency  of  Deed  and  Title.  A  fa- 
miliar form  of  expression,  used  b}'  conveyancers  in  drafting 
instruments  of  the  character  under  consideration,  in  relation 
to  the  deed  to  be  given  is,  "good  and  sufficient,"  though  not 
infrequently  the  contract  expressly  calls  tor  a  warranty  deed. 
The  term  "good  and  sufHcneut  deed,"  etc.,  has  been  the  sub- 
ject of  much  litigation  and  productive  of  a  large  amount  of 
judicial  reasoning,  both  as  regards  the  form  of  tlie  instrument 
and  the  title  conveyed  thereb3^  In  this,  as  in  most  other 
much  litigated  questions,  a  complete  harmony  of  opinion  has 
not  prevailed,  but  it  would  seem  to  be  the  pre]wnderating  doc- 
trine, that  a  covenant  to  give  a  good  and  sufficient  conveyance 
of  land  is  satisfied  by  a  quitclaim  deed,"  yet  with  respect  to 
the  title,  such  a  conveyance  can  only  be  performed  by  a  deed 
which  conveys  the  entire  estate,*  and  vests  in  the  purcliaseran 
indefeasible  title.^  A  conti-act  to  execute  a  good  and  sufficient 
warranty  deed  entities  the  purcliaser  to  a  warranty  deed  of  the 
land  free  from  all  incumbrances.^  In  every  contract  for  tlie 
sale  of  lands,  whatever  may  be  the  language  in  which  it  is 
couched,  there  is  an  implied  undertaking  to  make  a  good  title, 
unless  such  an  obligation  is  expressly  excluded  by  the  terms 

■  Bicknell  v.  Bicknpll,  31  Vt.  49?;  be  any  warranty;  and  if  the  convoy- 
Story  Eq.  Jur.  §   1,020.  ance  made  is  only  of  the  right,  title 

2  Bowers  v.  Oyster,  3  Pa.  239;  and  interest  of  the  vendor,  he  can 
Van  Meter  v.  McFadden,  8  B.  Mon.  not  be  held  liable  for  defects  of  title. 
(Ky.)  435;  Strauss'  Appeal,  49  Pa.  except  on  the  ground  of  fraud  or 
St.  3o8.  concealment:     Johnston  v.  Meuden- 

3  Kyle    V.   Kavanagh,  103    Mass.  hall,  9  W.  Va.  112. 

.356;  Thayer  iJ.  Torrey,  37    N.   J.  L.  '•Taft  v.  Kessel,  16  Wis.  273. 

339;  contra,  Watkins  v.    Rojjors,  21  ^  Delevan  v.  Duncan.  49  X.  Y.  4S.'); 

Ark.  298.    That  parties  have  made  a  Davis  r.  Henderson,    17  Wis.    lOo; 

written  agreement  forasalf,  without  Parker  v.  Parraelce.  20  .John.  130. 
providing  for  any  warranty,  indicates  *  Davidson  p.  Van    Pelt,  15    Wis. 

that  they  did  not  intend  there  should  341 ;  Burwell  t'.  Jackson,  5  Seld.  53G. 


294  ABSTRACTS   OF    TITLE. 

of  tlie  as^reement,^  and  in  the  absence  of  any  stipulation  as  to 
the  kind  of  conveyance,  the  presumption  is  that  the  vendor 
undertook  to  make  such  a  conveyance  as  will  render  the  sale 
effectual,^  Sj)ecial  attention  is  called  to  this  matter  at  this 
time,  from  the  fact  that  it  is  at  this  period  of  the  transaction 
that  an  attorney  is  usually  called  to  pass  upon  the  merits  of 
the  profered  title,  Wliatever  be  the  medium  of  transfer,  a 
searching  investi:::ation  should  be  given  to  the  title,  which,  if 
perfect  in  the  person  proposing  same,  renders  the  vehicle  of 
conveyance  of  minor  importance;  but  an  otfer  to  make  a  quit- 
claim deed,  which  conveys  only  the  vendor's  interest,  is  not  a 
compliance  with  an  agreement  to  make  title  in  a  case  where 
the  chain  of  title  upon  the  public  records  is  defective  or  bro- 
ken, or  the  land  is  burdened  with  liens  and  incumbrances/ 
In  executory  contracts  the  purchaser  is  never  bound  to  accept 
a  doubtful  title. ^  AVhenever  the  contract  calls  for  a  specific 
title  or  method  of  conveyance,  the  vendee  must  convey  as  spec- 
ilied;°  thus,  Mdiere  a  purchaser  has  contracted  for  a  good  title 
of  record,  he  can  not  be  compelled  to  take  a  title  depending 
upon  advei'se  possession  under  the  statute  of  limitations,  al- 
though it  may  be  perfectly  goodj  But  where  the  vendor  of 
land -assumes  no  responsibility  as  to  his  title,  and  is  to  make 
only  a  quitclaim  or  special  warranty  deed,  but  is  to  furnish  a 
satisfactory  abstract  of  title,  the  purchaser,  for  a  reasonable 
objection  to  tlie  title,  may  elect  whether  he  will  accept  a  con- 
veyance or  rescind  the  sale,  provided  same  is  made  with  no 
unnecessary  delay.*  If  he  elects  to  take  it  under  a  unilateral 
contract,  any  delay  on  liis  part  will  be  regarded  with  especial 
strictness,  the  fact  of  objection  in  such  case  not  justifying  great 
delay  in  performance,  and  it  lias  been  held,  under  similar  cir- 

1  Holland  V.  Holmes,  14  Fla.  390;      407. 

Hill    tK    Ressegien,  17    Barb.    162.  ^  Scott  v.    Simpson,     11     Heisk. 

Compare,  Johnston  v.  Mendenhall,  9  (Tenn.)  310. 

W.  Va.  112.  *  Delevan  v.  Duncan,  49  N.  Y.  4So; 

2  Hoffman  v.  Felt,  89  Cal.  109;  but  Tomlin  v.  M'Chord,  5    Mar^h.  (Ky.) 
consult  Fitch  v.  WiUard,  73  111.  92.  138. 

8  Holland  V.  Holmes,  14  Fla.  390.  '  Pagre  v.  Greely,  75  111.  400. 

^  Delevan  v.    Duncan,    49    N.  Y.  » pitch  v.  Willard,  73  111.  92. 

485;  Roberts   v.   Bassett,  105  Mass. 


AGREEMENTS  FOR  CONVEYANCE.  295 

cumstances,  that  if  other  written  evidences,  furnished  in  con- 
nection with  the  abstract,  show  a  ijood  title,  tliis  will  be  sutii- 
cient.  although  the  abstract  of  itself  does  not.' 

§  10.  Bond  for  a  Deed.  Bonds  for  the  conveyance  of  land  or 
interests  therein,  though  formerly  much  in  vogue,  have  now 
fallen  into  disuse,  and  when  shown  are  usually  in  the  earlier 
links  of  the  chain.  As  in  the  case  of  land  contracts,  when 
followed  by  deed,  only  a  brief  notice  is  required,  while  if  the 
condition  remains  unfulfilled,  greater  particularity  is  neces- 
sary. The  usual  formal  requisites  of  this  class  of  obligations 
are  equally  necessary  to  bonds  lor  title,  and  in  addition,  as  it 
provides  for  a  transfer  of  land,  the  essentials  necessary  to 
entitle  it  to  record  and  to  afford  constructive  notice,  as 
acknowledgment  and  the  like;  an  example  is  here  given: 


James   Thom/pson 
to 


Bond  for  Deed. 
Dated  July  J,  1S82. 
Recorded  July  3,  1SS3. 
Vol.  "  B  "  of  Deeds,  page  252. 
Thomas  Wilson.        J       Inthepenattyof^lfiOO.OO. 

Conditioned  for  the  conveyance^  hy  "  good  and  sufficient " 
deed^  of  land  in  Kenosha  County.,  Wis..,  described  as  the 
south  Jialf  of  the  southeast  quarter  of  Section  ten,  Town  one 
north.,  Range  twenty -three,  east  of  the  Jith  jprinciyal  rneridian, 
on  payment  of  $500.00. 

Acknowledged  Jxily  i,  1882. 

Special  ]>rovisions,  if  material,  should  be  shown  as  they 
occur.  A  bond  to  convey  land  upon  payment  of  the  stipu- 
lated price  is  evidence  of  a  mutual  agreement  of  the  obligee 
to  purchase  and  of  the  obligor  to  sell.  The  agreement  of  one 
party  is  a  consideration  for  that  of  the  other,  and  it  is  imma- 
terial that  the  obligation  of  the  one  party  is  secured  by  bund, 
and  that  of  the  other  is  not  thus  secured.^ 

§  11.  Agreements  for  Conveyances  by  "Will.  Agreements 
to  convey  need  not  provide  for  the  issuance  of  a  deed,  for  an 

'  Welch  V.  Button,  79  111.  465.  ments  to  convey  signed  by  vendor 

-  Ewins  V.  Gordon,  49  N.  H.  444.  only.  See  Vassault  v.  Edwards,  43 
The  rule  is  the  same  in  case  of  agree-      Cal.  458. 


296  ABSTRACTS   OF   TITLE. 

agreement  to  devise  the  property  by  will  tnay  be  subjected  to 
a  specific  performance  by  a  court  of  equity  after  the  deatli  of 
the  granting  party  with  the  same  eflect  as  a  contract  to  con- 
vey while  living.  It  has  been  said  by  Williamson,  C. : 
"There  can  be  no  doubt  but  that  a  person  n)ay  make  a  valid 
agreement,  binding  himself  legally  to  make  a  particular  dis- 
position of  his  property  by  last  will  and  testament.  The  law 
permits  a  man  to  dispose  of  his  own  property  at  his  pleasure; 
and  no  good  reason  can  be  assigned  why  he  may  not  make  a 
legal  agreement  to  dispose  of  his  property  to  a  particular 
individual,  or  for  a  particular  purpose,  as  well  by  will  as  by 
conveyance,  to  be  made  at  some  specified  future  period,  or 
upon  the  happening  of  some  s]iecified  future  event.  It  may 
be  unwise  for  a  man  to  embarrass  himself  as  to  the  final  dis- 
position of  liis  property,  but  he  is  the  disposer  by  law  of  his 
fortune,  and  the  sole  and  best  judge  as  to  the  manner  and 
time  of  disposing  of  it.  A  court  of  equity  will  decree  the 
specific  performance  of  such  an  agreement  upon  the  recog- 
nized principles  by  which  it  is  governed  in  the  exercise  of 
this  branch  of  its  jurisdiction."  * 

1  Johnson  v.  Hubbell,  5  Am.  Law      Miss.    f^89;  Mundorf  v.   Howard,  4 
Reg.  177;  Stephens  v.  Reynolds,  6       Md.  459. 
N.  Y.  458;   Wright   v.  Tinsley,  30 


CnAPTER  XX. 


LEASES. 

§  1.     Nature  and  requisites.  §  4.     Implied  covenants, 

2.  Formal  parts.  5.     Agricultural  lands. 

3.  Covenants  aud  conditions.  6.     Assignment  of  lease. 

§  1.  Nature  and  Requisites.  A  lease  is  a  contract  for  the 
possession  and  profits  of  land  and  t(;neinents  on  the  one  side, 
and  a  recompense  of  rent  or  otlier  income  on  the  other;  or  it 
is  a  conveyance  to  a  person  for  life  or  years,  or  at  will,  in  con- 
sideration of  snch  rent.'  The  estate  or  interest  conveyed  by  a 
lease  is  personal  in  its  nature,  whatever  may  be  the  duration 
of  the  term,  and  falling  below  the  character  and  dignity  of  a 
freehold,  it  is  regarded  as  a  chattel  interest,  and  is  governed 
and  descendible  in  the  same  manner.''  When  made  in  writing, 
as  it  must  be  if  the  term  exceeds  one  year  in  duration,  a  lease 
is  usually  mutually  signed  in  duplicate  and  interchangeably 
delivered  by  the  parties,^  but  if  only  signed  by  the  lessor,  its 
acceptance  by  tiie  lessee  raises  a  promise  on  his  ]iurt  to  pay 
the  rent  reserved  and  faithfully  observe  all  tiie  stipulations 
and  conditions  M'hicli  the  lease  shows  were  to  be  observed  or 
performed  by  him.*  Whether  an  instrument  shall  be  consid- 
ered a  lease,  or  only  an  agreement  for  one,  depends  on  the  in- 
tention of  the  parties,  as  collected  from  the  whole  instrument, 
and  the  law  will  rather  do  violence  to  the  words  than  break 
through  the  intent  of  the    parties  by  construing  such  an  in- 

•  Jackson  r.  Ilarsen,  7  Cow.  326;  to  the  landlord  the  counierpaii,  hu 
2  Bl.  Com.  217.  for  all  practical    purposes  both    are 

2  2  Kent    Com.    342;    Goodwin  p.  regarded    as    orginal:     Dudley    v. 

Goodwin,  33  Conn.  314.  Sumner.  5  Mas-;.  4  W;  Taylor's  Land- 

*  The  copy  delivered  to  the  tenant  lord  iind  Tenant,  106  (6th  ed.). 
is  called  the  original  lease,  the    one  *  Pike  r.  Brown,  7  Cush.  I'M. 

(297) 


298  ABSTRACTS    OF    TITLE. 

strument  as  a  lease,  when  tlie  intent  was  manifestly  other- 
wise/ The  proper  definition  of  a  lease  embraces  only  such  in- 
struments of  conveyance  as  transfer  to  the  lessee  a  less  estate 
than  is  possessed  by  the  lessor,  thus  leaving  a  reversion  in 
hini,^  and  this  in  the  sense  in  whicli  the  term  is  now  employed; 
yet  formerly  it  was  not  uncommon  to  grant  land  in  fee,  re- 
serving an  annual  rent  charge,  notwithstanding  thei-e  was  no 
reversion  to  the  person  entitled  to  it;  and  the  covenant  to  pay 
such  rent  ran  with  the  land,  as  well  as  the  condition  of  re-en- 
try for  its  non-payment/ 

§  2.  Formal  Parts.  Wliere  a  lease  is  found  upon  the  rec- 
ords which  has  expired  by  its  own  limitation,  it  raises  a  vexed 
question  among  examiners  as  to  whether  it  should  be  shown 
or  passed  over  in  silence.  It  can  in  no  way  affect  the  title; 
it  is  not  a  charge  or  incumbrance;  nor  is  it  even  a  cloud.  It 
may  with  propriety  be  disregarded  unless  followed  by  a  sub- 
sequent renewal,  but  should  the  examiner  deem  it  expedient 
to  note  it  as  being  included  in  and  covered  by  his  certificate 
of  search,  a  brief  statement  by  way  of  appendix  would  seem 
fully  sufhcient.  When  for  a  brief  or  almost  expired  term,  be- 
ing a  charo-e  upon  the   fee,  it  should  be  shown   brieflv,  and 

SOI  '  */   ^ 

when  for  a  long  term  of  years,  show  fully  and  succinctly. 
When  for  ninety-nine  years,  or  renewable  forever,  it  has  much 
of  the  dignity  and  many  of  the  attributes  of  a  conveyance  of 
the  fee  and  requires  cori^esponding  treatment.  When  shown 
fully,  the  examiner  will  observe  the  names  of  parties  as  in 
case  of  deeds;  the  dates;  the  description;  the  term;  the  rent 
reserved;  the  general  and  special  covenants;  the  conditions 
and  restrictions,  and  the  special  agreement,  if  any.  The  exe- 
cution and  authentication  should  comply  with  the  statute. 
When  of  sufficient  importance  to  show  in  extetiso  the  entire 
instrument  should  be  carefully  perused  and  the  covenants  and 
conditions  particularly  observed.  The  aid  of  an  experienced 
conveyancer  is  frequently  dispensed  with  in  preparing  instru- 
ments of  this  character;  printed  forms  are   generally   made 

^  Jackson    v.    Delacroix,  2  Wend.  ^  Van  Rensselter  v.  Hays,  5  Smith, 

433.  68;  2  Sugd.  Vend.  725,  jPerkins'  Ed. 

2  Willard's  Conveyancing,  425.  177;  Jackson  v.  Allen,  3  Cow.  220. 


LEASES.  299 

nse  of,  and,  wlien  tliej  are  not  obtainable,  copies  are  made 
from  books  of  forms  or  from  some  old  instrument  in  print. 
In  this  way  covenants  are  transmitted  without  being  well  un- 
derstood, and  which  often  astonisii  the  parties  to  be  bound 
when  occasion  arises  which  calls  for  the  performance  of  them.^ 
The  dates  are  important  in  leases,  much  more  so  than  in  abso- 
lute conveyances,  and  frequently  are  of  controllini^:  eflScacy  in 
determiniiii,'  the  duration  of  the  term.  The  words  of  limi- 
tation of  the  term  will  also  be  carefully  noted,  as  also  the 
words  of  forfeiture  and  ceaser.  The  proper  words  to  be  used  in 
creatino;  a  limitation  upon  a  term  granted  are,  "while,  "  "as 
long  as,"  "during,"  and  " until. "^  The  words  of  grant  are 
"  demise,  lease  and  let,"  or  "to  form  let,"  but  these  words, 
as  in  case  of  deeds  have  little  efficacy,  and  any  other  words 
which  show  the  intention  will  do  as  well.'  The  matter  of 
execution,  as  sealing,  acknowledgment,  etc.,  is  statutory,  but  as 
a  rule  neither  of  the  aforementioned  formalities  are  necessary. 

William  M.  Johnston  "1  Leafte. 

to  and  icith  1  Dated.,  etc. 

Hiram  TF.  Jamison.  f  *         *         *         * 

Doc.  120,U0-  J  *        *        *        * 

First  2>(('^'iy  leases,  demises  and  lets  to  second  party  the 
following  described  real  estate  in  Cook  Countij,  Ills.,  to  wit: 
[describe  the  prope7'ti/.'] 

To  hold  for  the  term  of  ten  years  from  {the  day  of  the 
date  hereof;  or,  a  specific  date,  if  inserted),  at  the  annual 
rental  of  ^500.00  payable  semi-annually. 

Said  second  party  covenants:  for  the  payment  of  the  rent 
reserved;  for  the  payment  of  all  taxes  and  assessments  levied 
on  said  premises  during  the  term  aforesaid;  against  waste; 
against  sub-leasing,  etc. 

Said  first  party  covenants:  for  quiet  enjoyment;  for  the 
renewal  of  the  term  hereby  demised  at  the  expiration  thereof 
for  the  same  time  and  upon  the  same  terms  as  this  indent- 
ure, etc. 

1  Phillips  V.  Stevens,  16  Ma?s.  2n9.  "Hallett    v.  Wylie.  3  Johns.   44*; 

2  Vannattav.  Brewer,  32  N.  J.  Eq.  Taylor's  Lumllord  and  Tenant,  114 
268.  (6th  ed.). 


300  ABSTRACTS    OF   TITLE. 

Provides,  tluit  in  case  said  second  party  shall  neglect^  or 
fail  to  i^erform  and  ohserve  any  or  either  of  hef ore-mentioned 
covenants  on  his  p«?'^  to  he  performed,  the  term  hereby  de- 
mised is  to  cease  and  determine,  and  that  first  party  tnay 
enter  and  repossess  said  jpre7?i^s'65,  without  further  notice  or 
demand,  and  expel  said  second  pyarty  {and  those  claiming 
under  him)  without  prejudice. 

Provides  further,  that  in  case  the  j^'^'^^nises  shall  he  de- 
stroyed hy  fire  or  other  unavoidahle  casualty,  that  the  term 
herehy  demised  shall  cease  {or,  that  the  rent  he  suspended^  etc.) 

Signed  and  sealed  hy  hoth  parties. 

Ackn  owledgmeat. 

In  many  cases  it  will  be  necessary  to  set  out  the  covenants 
and  conditions  with  greater  precision  than  in  the  exam])le, 
particularly  in  case  of  ground  .leases  for  long  terms  and  in 
cases  wdiere  the  land  demised  has  been  highly  improved  with 
permanent  buildings  by  the  tenant.  In  cases  of  leases  for  lives, 
more  detail  will  be  necessary  in  describing  the  term,  and  the 
provisions  looking  toward  forfeiture. 

§  3.  Covenants  and  Conditions.  Owing  to  the  ignorance 
generally  prevailing  of  the  legal  effects  of  covenants  in  leases 
and  other  instruments,  which  are  often  executed  without  any 
particular  inspection  or  knowledge  of  their  contents,  people 
are  often  surprised  into  contracts  which  neither  part}'  in- 
tended w^ien  the  instrument  was  executed.^  The  words 
"yielding  and  paying,"  etc.,  constitute  a  covenant  for  the 
payment  of  rent,^  which  runs  with  the  land,  and  formerly,  if 
not  qualified  b}^  any  exception  or  condition,  bound  the  ten- 
ant to  pay  rent  during  the  continuance  of  the  term,  notwith- 
standing the  premises  were  destroyed  by  fire  during  the  ten- 
ancy.* Covenants  for  rebuilding,  repairing,  etc.,  run  with  the 
land  and  are  obligatory  upon  both  parties  and  their  assigns,* 
according  as  either  of  the  parties  are  bound.  The  covenant 
to  pay  for  any  buildings,  erjcted  by  the  tenant,    at  the  expi- 

1  Phillips  V.    Stevens,   16   Mass.  ^  Hallett  r.  Wylie,  3  Johns.  44. 
2:^.9.                                                             *  Allen  v.  Culver,  3  Denio,  284. 

2  DeLaucy  v.  Ganong,  5  Seld.  9. 


LEASES.  30 1 

ration  of  the  term,  runs  with  the  Land  and  inures  to  tlie  ben- 
efit of  the  assignee.^  The  covenant  of  renewal  is  one  of  tlie 
most  important  noticed  by  the  examiner,  and  like  those  just 
mentioned  is  incident  to  the  land.  A  covenant  to  renew  im- 
plies the  same  term  and  rent,  but  not  the  same  covenants," 
and  is  satisfied,  even  though  containing  a  covenant  to  renew 
under  the  same  covenants  contained  in  the  original  lease,  by 
a  renewal  omitting  the  covenant  to  renew,^  The  burden  of 
the  pavnicnt  of  taxes  and  assessments  is  frequently  assumed 
by  the  tenant,  particularly  in  long  terms,  but  whether  as- 
sumed by  lessor  or  lessee  it  runs  with  the  land  and  binds  the 
respective  assigns.*  The  covenants  of  leases  are  usually  pro- 
tected by  a  condition  avoiding  the  estate  and  workin"  a  for- 
feiture in  case  of  breach,  and  this  condition,  which  is  of  the 
essence  of  the  lease,  must  always  be  noticed  at  such  length 
as  its  importance  seems  to  demand. 

§  4.  Implied  Covenants.  It  is  a  fundamental  principle 
that  the  law  will  always  imply  covenants  against  paramount 
title,  and  against  such  acts  of  the  landlord  as  destroy  the  bene- 
ficial enjoyment  of  the  premises.^ 

§  5.  Agricultural  Lands,  To  avoid  perpetuities,  as  well 
as  the  creation  of  large  manorial  estates,  a  majority  of  the 
States  have,  either  by  a  constitutional  provision  or  an  express 
statutory  enactment,  prohibited  the  lease  or  grant  of  agricult- 
ural land,  for  a  longer  period  than  twelve  or  iifteen  years, 
and  leases  made  in  contravention  of  this  prohibition,  in  which 
there  is  reserved  any  rent  or  service  of  any  kind,  are  declared 
to  be  void.     The  leases  or  grants  contemplated   by  the  law, 

»  Lametti  v.  Anderson,  6  Cow.  .S02;  kie,  45  Md.  209. 

Van    Ransseloer     v.     Pennimar,     6  *  Carr  i\   Ellison,    20  Wond.   178. 

Wend.  569.  A  covenant  to  renew  which  does  not 

^  Rutgers  v.  Hunter,  6  Johns  Ch.  state  the  terras  or  length  of  time  of 

218.     The  covenant  for  renewal  may  such  renewal,  has  been  held  void  for 

be  spec  fically  enforced,  provided  the  uncertniiity:  Laird  r.  Boyle,  2  Wis. 

application  be  made  within  a  reason-  431. 

able  time  after  the  expiration  of  the  *  Post  r.  Kearny,  2  Comst.  "94;  Os- 

former  lease,  and  the  owner  of  the  wald  v.  Gilfert,    11  Johns.  44:5. 

reversion  or  fee  will  be  compelled  to  ^  Stx'eeter  v.  Streeter,  40  111.  155; 

execute  a  new  lease :  Banks  v.   Has-  Boreel  v.  Lawton,  90  N.  Y.  293. 


302  ABSTKACT3    OF   TITLE. 

are  sncli  as  were  held  bj  the  tenant  upon  a  reservation  of  an 
annual  or  periodical  rent  or  service,  to  be  paid  as  a  compensa- 
tion for  the  use  of  the  estate  granted.  It  is  still  competent 
to  make  a  grant  for  life,  or  lives,  upon  a  good  consideration 
to  be  paid  for  the  estate,  which  consideration  may  be  payable 
at  once,  or  by  installments,  or  in  services,  so  that  it  be  not  by 
way  of  rent.  To  bring  it  within  the  law  there  must  be  a  res- 
ervation of  rent  or  service.^  A  reservation  is  defined  as  a 
keeping  aside,  or  providing,  as  when  a  man  lets,  or  parts 
with  his  land,  but  reserves,  or  provides  himself  a  rent  out  of 
it  for  his  liveliliood;  and  a  rent  is  said  to  be  a  sum  of  money, 
or  other  consideration,  issuing  yearly  out  of  lands  and  tene- 
ments. It  must  be  profit,  but  it  is  not  necessary  that  it 
should  be  money.  The  profit  must  be  certain,  and  it  must 
also  issue  yearly.^ 

§  6.  Assignment  of  Lease.  To  constitute  an  assignment 
of  a  leasehold  interest,  the  assignee  must  take  precisely  the 
same  estate  in  the  whole  or  in  a  part  of  the  leased  premises 
which  his  assignor  had  therein.  He  must  not  only  take  for 
the  whole  of  the  unexpired  term,  but  he  must  take  the  whole 
estate,  or  in  other  words,  the  whole  term;'  for  the  word 
"term "does  not  merely  signify  the  time  specified  in  the 
lease,  but  the  estate  also  and  interest  that  passes  by  the  lease; 
and  therefore  the  term  may  expire  during  the  continuance  of 
the  time,  as  by  surrender,  forfeiture,  and  the  like.*  The  grant 
of  an  interest,  therefore,  which  may  possibly  endure  to  the 
end  of  the  term,  is  not  necessarily  a  grant  of  all  the  estate  in 
the  term.  If,  by  the  terms  of  the  conveyance,  it  be  in  the 
form  of  a  lease  or  an  assignment,  and  new  conditions  with  a 
right  of  entry,  or  new  causes  of  forfeiture  are  created,  then 
the  tenant  holds  by  a  different  tenure  and  a  new  leasehold  in- 
terest arises,  which  can  not  be  treated  as  an  assignment  or  a 
continuation  to  him  of  tlie  original  term.     When  an  estate  is 

^  Parsell  v.  Stryker,  41  N.  T.  480.  mortgage  of  all   the  estate  of  a  les- 

2  Stephen's  v.  Reynolds,  6  N.  Y.  see,  is  an  assignee:  Kearney  v.  Post, 
458.    2  Blk.  Com.  41.  1  Sandf.  105. 

3  Van  Ransselser  v.  Gallup,  5  De-  *  2  Black.  Com.  144. 
nio,  454.    The  purchaser  under    a 


LEASES.  303 

conveyed  to  be  held  by  the  grantee  npon  a  condition  subse- 
quent, tliere  is  left  in  the  grantor  a  contingent  reversionary 
intei'est;^  and  where  by  the  terms  of  an  instrument  wliicli 
purports  to  be  an  under  lease,  there  is  left  in  the  lessor  a  con- 
tingent reversionary  interest,  to  be  availed  of  by  an  entry  for 
breach  of  condition,  which  restores  the  sub-lessor  to  his  for- 
mer interest  in  the  premises,  the  sub-lessee  takes  an  inferior 
and  different  estate  from  that  which  he  would  acquire  by  an 
assignment  of  the  remainder  of  the  original  term:  that  is  to 
say,  an  interest  which  may  be  terminated  by  forfeiture,  on 
new  and  independent  grounds,  long  before  the  expiration  of 
the  original  term.  If  the  smallest  reversionary  interest  is  re- 
tained, the  tenant  takes  as  sub-lessee,  and  not  as  assignee.'"' 

^Austin  V.  Cambriclgeport  Parish,  ^Dunlap  r.  BuUard,  11  Reporter, 

21  Pick.  215;  Brattle  Square  Church  774;  McNeil  v.  Kendall,  128  Mass. 
V.  Grant,  3  Gray,  147.  245. 


§  1. 

2. 
3. 
4. 

General  remarks. 
Irregular  instruments. 
Municipal  ordinances. 
Operation  and  elFect  of  ordi- 

§7. 

8. 

9. 

10. 

5. 
6. 

nances. 
]\Iunicipal  resolutions. 
Official  certificates. 

11. 
12. 

CHAPTER  XXL 


MISCELLAITEOUS  EVIDENCE  OF  AND  AFFECTING  TITLE. 


Incoi"poreal  hereditaments. 

Easements  and  servitudes. 

Party  wall  agreements. 

Letters. 

Affidavits. 

Unrecorded  instruments. 


§  1.  General  Remarks.  In  this  chapter  it  is  proposed 
briefly  to  notice  a  variety  of  instrnments  which  are  not  sus- 
ceptible of  classification  in  other  divisions  of  the  work,  but 
which  have  a  direct  bearing  upon  the  question  of  title,  and 
which  must  be  included  in  all  properly  prepared  abstracts, 
provided  they  appear  upon  the  records  during  the  period  cov- 
ered by  the  search.  Of  tliis  nature  are  aflidavits,  municipal 
ordinances,  letters,  etc.,  all  of  which  are  proper,  and,  under 
certain  conditions,  competent  evidence,  in  support  of  tlie  facts 
so  presented. 

§  2.  Irregular  Instruments.  This  is  the  name  applied  bj 
examiners,  to  all  conveyances  and  instruments  which  are  not 
susceptible  of  suflicient  identification  of  the  subject-matter  to 
permit  of  their  being  posted  in  the  tract  indices.  They  in- 
clude "  blank  "  conveyances,  that  is,  all  conveyances  in  which 
the  property  is  mentioned  only  in  general  terms  and  not  spe- 
cifically; letters  of  attorney  giving  only  a  genei-al  power; 
releases,  confirmations,  etc.,  which  describe  no  property  but 
allude  to  other  instruments  for  identification;  affidavits  of 
facts  not  directly  connected  wnth  land;  and  all  other  instru- 
ments and  documents  which  do  not  upon  their  face  indicate 
the  particular  parcel  of  land  they  affect. 

(304) 


MISCELLANEOUS    EVIDENCE    OF    AND    AFFECTING    TITLE.      305 

§  3.  Municipal  Ordinances.  A  city  conncil  or  village 
board  is  a  iiiiniature  legislature,  authorized  to  legislate  for  a 
locality,  and  their  ordinances,  within  the  power  intrusted, 
have  all  the  force  of  laws  passed  by  the  legislature.  Thev 
are  restrained,  however,  to  such  matters,  whether  specially 
enumerated  or  included  under  a  general  grant,  as  are  not  at 
variance  with  the  general  laws  of  the  State,  and  are  reasona- 
ble and  adapted  to,  or  pro]ier  for,  the  purposes  of  the  corpo- 
ration. Ordinances  must  be  consistent  with  public  legislative 
policy,  and  must  not  contravene  common  right.  These  are 
general  principles  universally  recognized.'  "Without  entering 
into  a  discussion  of  the  nature,  requisites  and  validity  of  ordi- 
nances, which  as  a  rule,  must  be  determined  by  reference  to 
the  organic  act  or  charter  of  the  municipality,  it  may  be 
stated  generally,  that  such  ordinances  must  be  adopted  by  the 
proper  body,  and  published  in  the  manner  provided  by  law,' 
the  practical  operation  of  an  ordinance  dating  from  its 
passage  and  publication.  AYhen  so  passed  and  published 
they  afford  constructive  notice  to  all  persons  bound  to  take 
notice  of  them.*  The  onl}'-  occasion  the  examiner  will  have 
to  show  the  acts  of  municipal  bodies,  will  be  in  relation  to 
the  opening  or  vacating  of  streets  and  alleys,  with  an  occa- 
sional conveyance,  which  should  be  prefaced  by  a  synopsis  of 
the  ordinance  or  resolution  authoi-izing  same.  Being  in  the 
nature  of  ]Miblic  laws  no  record  is  required  in  the  registry  of 
deeds,  though  this  may  be  accomplished  by  the  individual, 
and  recourse  must  usually  be  had  to  the  corporate  records. 
The  abstract  should  show:  the  d:ites  respectively  of  passage 
and  publication,  and,  when  recorded,  the  date  of  record;  the 
subject-matter,  briefly  stated;  and  the  attestation,  if  any  is 
required.  The  following  will  more  fully  illustrate  the  sub- 
ject: 

^Longv.  Slielby  County,  12   Re-  M  j)\]  Municipal  Corp.  ^76;  Bar- 
porter,  285;  Maxwell  r.  Jonesbro,  11  nett  r.  Newark,  28  111.  62;  Conboy 
Heisk.  (Tenn.)    2")7;     Williams     r.  v.  Iowa  City,  2  Iowa,  QX 
Augusta,  4Ga.  509;  Mount  Pleasaut  »  Palmyra  r.  Morton,  2">  Mo.  59:"{ ; 
V.  Breeze,  11  Iowa,  399.  Buffalo  v.  Webster,  10  Weud.  99. 
20 


306  ABSTKACTS    OF   TITLE. 

Yacat'wn  )        Ordinance^  I^o.  1000. 

hy  \       Adopted  Sept.  G,  1873. 

The  Village  of  Jefferson.     )        Recorded   Sept.   15,    1873. 

Book  6  of  Plats,  page   13. 

Recites,  that  whereas.,  a  petition  has  heen  duly  filed  with 
the  Board  of  Trustees  of  the  Village  of  Jefferson,  signed  hy 
Thos.  Wilson  and  Lillie  M.  C.  Wilso?i,  representing  that 
they  are  the  owners  of  Blocks  76  and  77  in  Norwood  Park, 
and  praying  said  hoard  to  order  a  vacation  of  all  that  part  of 
Washington  Street  lying  hetioeen  said  Blocks,  commencing 
at  Indiana  Street  and  running  to  Eastern  Avenue. 

And  whereas,  satisfactory  evidence  having  heen  filed  hy 
said  petitioners  of  dtie  notice  of  said  application,  and  no 
ohjections  appearing,  therefore  it  is, 

Ordained,  hy  the  President  and  Board  of  Trustees  of  the 
Village  of  Jefferson,  that  all  that  p)art  of  Washington  Street, 
in  Norwood  Park,  lohicli  lies  hetioeen  Blocks  76  and  77,  be- 
ginning on  Indiana  Street  and  running  through  to  East- 
ern Avenue,  he  and  same  herehy  is  vacated. 

Published  Sept.  7,  1873. 

XoTE. — Ap-pended  to  the  record  of  the  foregoing  is  a  certifi- 
cate hy  S.  M.  Davis,  "  Village  Clerk^''  that  same  is  a  triie 
copy  of  the  original  ordinance, 

§  4.  Operation  and  Effect  of  Ordinances.  It  doos  not 
seem  that  a  municipal  corporation,  more  than  an  individual, 
can  convey  the  title  to  real  estate  in  any  other  manner  than 
by  a  duly  executed  deed,^  and  where  such  conve_yance  has 
been  attempted  by  ordinance  no  title  has  been  held  to  pass, 
while  such  ordinance  was  further  held  to  be  so  defective  as  a 
conveyance  as  not  to  give  color  of  title  in  support  of  an  ad- 
verse possession.^  A  release  of  a  right  in  real  property,  by 
ordinance  and  not  by  deed,  will,  it  seems,  be  enforced  in 
equity,  when  within  the  scope  of  the  corporate  power,  and 
upon  consideration,^  while  the  legal  effect  of  a  vacation  of  a 
public  street  or  avenue,  is  to  revest  the  title  of  the  land  em- 

^  Dill.  Mun.  Corp.  §  451,  and  see,  ^  Beaufort  v.  Duncan,  1  Jones  L. 

Cofran  v.  Cofran,  5  N.  H.  458;  Ang.       (N.  C.)  239. 
&  Ames  Corp.  §  193.  ^  Grant  i'.  Davenport,  18  Iowa,  179. 


MISCELLANEOUS    EVIDENCE   OF   AND    AFFECTING   TITLE.      307 

braced  within  its  limits,  in  the  original  owner  who  dedicated 
same.' 

§  5.  Municipal  Resolutions.  A  resolution  is  an  order  of 
the  council  or  governinor  board  of  a  special  and  temporary 
character,'^  but  ordinarily  has  the  same  effect  as  an  ordinance, 
as  both  are  legislative  acts."  Where  any  matter  is  committed 
to  the  decision  of  the  council  b}'  the  charter,  which  is  silent 
as  to  the  mode,  the  decision  may  be  evidenced  by  a  resolution, 
and  need  not  necessarily  be  by  an  ordinance,*  hence  it  is  custom- 
ary in  sales  of  the  municipal  real  estate,  to  authorize  the  sale 
and  transfer  of  same  by  a  resolution  which  also  directs  the 
method  of  conveyance  and  nominates  the  persons  who  are  to 
execute  the  deed.*  It  would  seem  to  be  the  prevailing  doctrine 
that  mnnicipal  conveyances  of  real  estate  which,  upon  their 
faces  are  regular,  carry  with  them  the  presumption  of  a  due  and 
proper  execution  in  pursuance  of  law;®  "hence,"  observes 
Mr.  Dillon,  "  it  is  unnecessary  for  the  grantee  or  party  claim- 
ing under  it  to  produce  the  special  resolution  or  ordinance 
authorizing  its  execution."^  'J'his  may  be  true  for  the  ordi- 
nary purposes  of  conveyancing,  but  can  not  be  regarded  as  a  safe 
rule  in  the  preparation  of  an  abstract,  which  should  not  only 
disclose  sufficient  of  tiie  deed  to  show  a  regular  execution  upon 
its  face,  but  also  the  authority  in  pursuance  of  which  it  was 
made,  that  counsel  may  know  from  inspection  and  comparison 


J  Hyde  Park  v.  Borden,  94  111.  2G; 
Gebhart  v.  Reeves,  75  111.  301. 

2  Blanch.ird  v.  Bisscll,  11  Ohio  St. 
96. 

•■»  Sower  V.  Philadelphia,  35  Pa.  St. 
231;  Gas  Co.  V.  San  Francisco,  6  Cal. 
190. 

*  State  V.  Jersey  City,  3  Dutch.  (N, 
J.)  493. 

*  If  the  charter  or  constituent  act 
of  the  corporation  prescribes  a  partic- 
ular mode  in  which  the  corporate 
property  shall  be  disposed  of,  that 
mode  must  be  pursued:  2  Dill,  on 
Mun.  Corp.  §  447,  and  see  McCrack- 


en  V.  San  Francisco,  16  Cal.  591 ; 
Gi-ojan  I).  San  Francisco.  18  Cal.  590. 
where  it  was  held,  where  municipal 
officers,  under  the  authority  of  a  void 
ordinance,  had  made  sales  of  corpo- 
rate real  estate,  that  no  title  passed, 
the  ordinance  and  sales  not  havinjy 
been  in  conformity  to  the  charter 
which  prescribed  a  rule  for  such 
ca.«es. 

^Jamison  v.  Fopiana,  43  Mo.  565; 
Flint  V.  Clinton  County,  12  N.  H. 
43.  See  Hart  v.  Stone,  30  Conn. 
94. 

'  Dill.  Mun.  Corp,  §  450. 


308  ABSTRACTS    OF    TITLE. 

that  it  was  duly  executed,'  it  being  the  duty  of  counsel,  so  far 
as  may  be,  to  reduce  ]  resumptions  to  certainties,  and  when- 
ever an  abstract  is  presented,  showing  a  municipal  deed,  but 
no  order  or  resohition  in  support  of  it,  a  requisition  should  be 
made  for  the  evidence  of  the  authority  under  which  it  wae 
executed. 

§  6,  Official  Certificates.  Certificates  of  officers  having 
the  legal  custody  or  supervision  of  records,  etc.,  as  well  as 
ministerial  officers  in  the  performance  of  some  legal  duty,  are 
of  frequent  occurrence.  Usually  they  are  appended  to  some 
kind  of  documentary  evidence  to  which  they  have  special  re- 
lation, but  may  be  used  as  affirmative  and  independent  proof 
of  matters  witliin  the  certifying  officer's  jurisdiction.  Instan- 
ces of  this  are  atlbrded  by  the  certificates  of  levj-,  attachment, 
etc.,  made  by  officers  executing  the  process  of  courts  and 
whicli  afford  internal  proof  of  the  matters  therein  recited. 
Aside  from  the  certificates  of  officers,  and  otliers,  reciting  their 
own  acts  in  connection  with  some  particular  proceeding  in  the 
line  of  their  official  duty,  there  is  a  class  of  ofiicial  custo- 
dians who  certify  from  the  records,  books,  files,  etc.,  committed 
to  their  care,  and  to  whose  certificates,  under  their  official  seal, 
if  they  have  any,  the  statute  in  some  cases  and  comity  in 
others,  attaches  a  cei'taiu  degree  of  importance  as  evidence. 
When  a  ]uiblic  officer  is  required  or  authorized  by  law  to 
make  a  certificate  or  affidavit,  touching  an  act  performed  by 
him,  or  to  a  fact  ascertained  by  him,  in  the  course  of  his  offi- 
cial duty,  and  to  file  or  deposit  it  in  a  public  office,  such 
certificate  or  affidavit  when  so  filed  or  deposited  is  received  as 
presumptive  evidence  of  the  facts  therein  stated,  unless  its 
effect  is  declared  b^'-  some  special  provision  of  law.  Under 
this  head  come  certificates  of  sale  by  masters  in  chancery  and 
of  levy  and  attachment  by  sherifi's,  examples  of  which  will  be 
found  further  on.  Certificates  annexed  to  other  documents 
for  the  purpose  of  proof  or  verification  do  not,  as  a  rule,  re- 
quire or  receive  extended  notice,  but  when  standing  alone,  and 

'  Conveyances  of  real  property  by      special  authority  for  that  purpose: 
the  officers  of  a  municipal  corpora-      Merrill  v.  Burbauk,  23  Me.  538. 
tion   must  be  made  by  virtue  of  a 


*  *  *  *  * 

*  *  * 


MISCELLANEOUS   EVmENCE    OF    AND    AFFECTING    TITLE.       309 

as  affirmative  evidence  of  some  particular  fact  thej  acquire  a 
certain  dignity  that  calls  for  commensurate  treatment.  When 
these  certificates,  for  instance,  allude  to  facts  which  appear 
from  the  books,  files  and  records  of  the  officers  of  State  in  re- 
gard to  the  transfer  of  land  by  or  to  the  government,  Federal 
or  State,  or  by  the  State  to  individuals,  the  original  evidence 
of  which  is  not  accessible,  or  has  been  destroyed  or  lost,  they 
become  of  the  highest  importance  and  should  be  shown  in 
detail.     As,  per  example: 

Certificate  ]       Proof  of  Conveyance, 

hi/  j        Dated,  etc 

Ernst  G.  Thnme,  Sec-  \ 

retary  of  State,  of  \ 

the  State  of  Wiscon-  \       Said    Secretary     certifies,    that 

sin.  J  from  the  hooks,  files  and  records  of 

the  ofiice  of  Secretary  of  State,  it 
appears  that  on  the  10th  day  of  June,  1S50,  the  follow  ingde- 
scrihed  real  estate,  situate  in  the  State  of  Wisconsin,  viz.: 
[set  out  description]  was  duly  transferred  hy  the  United 
States  to  the  State  of  Wisconsin,  and  that  on  the  15th  day 
of  July,  18-52,  the  ahove  described  real  estate  was  duly 
transferred  hy  the  State  of  Wisconsin  to  William  Jones. 

Signed  hy  said  Secretary  and  the  great  {or  lesser)  seal  of 
the  State  of  Wisconsin  affixed. 

Where  certificates  are  appendant  merely,  the  degree  of  no- 
tice must  be  determined  by  the  character  of  the  principal 
matter;  as,  if  in  the  foregoing  case  a  transcript  of  books,  files, 
etc.,  had  been  made,  the  certificate  would  simply  have  been 
by  way  of  verification,  and  the  examiner  might  have  shown 
this  by  a  formal  abstract  of  the  instrument  as  above,  or  he 
might  with  equal  propriety  mention  it  in  this  manner: 

Certificate  hy  Ernst  G.  Timme,  Secretary  of  State,  that 
the  "  annexed  and  foregoing  "  is  a  true  and  correct  tran- 
script of  all  hooks,  files,  records,  certificates  and  other  writ- 
ten or  documentary  evidence  of  title,  on  file  or  of  record  in 
his  office,  relating  to  or  appertaining  to  the  title  to  the  lands 
described  in  the  foregoing  transcrip>t,  and  of  tJie  whole  there- 
of appended. 


310  ABSTRACTS    OF    TITLE. 

§  7.  Incorporeal  Hereditaments.  Ill  an  En<^lisli  work  on 
titles  this  subject  would  occupy  no  inconsiderable  space,  while 
in  the  compilation  and  examination  of  English  abstiacts  it 
plaj's  a  conspicuous  part,  yet  in  the  United  States  the  term 
is  seldom  used,  while  the  number  of  strictly  incorporeal  here- 
ditaments is  very  small.^  When  exei-cised  in  this  country 
they  are  usually  such  as  come  within  the  definition  and  gen- 
eral doctrines  of  easements  and  servitudes. 

§  8.  Easements  and  Servitudes.  An  easement  is  technic- 
ally understood  to  be  raised  or  created  by  a  grant,  but  may 
be  reserved  in  a  conveyance  as  etfectnally  as  by  a  grant  by 
deed.  Indeed,  separate  instruments  are  rarely  employed  to 
create  easements,  but  occasionally  grants  of  rights  of  way 
will  be  found  as  well  as  instruments  granting  riparian  rights. 
Where  an  easement  is  appurtenant  or  appendant  to  an  estate 
in  fee  in  lands,  or  in  gross,  to  the  person  of  the  grantor  for 
life  or  for  years,  it  is  incapable  of  alienation  or  conveyance  in 
fee.^  When  in  gross,  it  is  purely  personal  to  the  holder,  and 
can  not  be  assigned,  nor  will  it  pass  by  descent;^  when  ap- 
purtenant, it  is  attached  to,  and  is  incident  to,  the  land  and 
passes  with  it,  whether  the  land  be  conveyed  for  a  term  of 
years,  for  life,  or  in  fee.*  Being  an  incident  to  the  land,  it 
can  not  be  separated  from  or  transferred  independent  of  the 
land  to  which  it  inheres.^ 

§  9.  Party  Wall  Agreements.  In  populous  localities  party 
wall  agreements  are  of  frequent  occurrence,  and  though  not 
technically  conveyances  of  land,  the  legal  eflect  of  same  is  to 

'The  principal  incorporeal  here-  tudes,"  sHjjrff.  p.  21. 
ditaments  according  to  the  common  ^  Wash.    Easements,    10;     Koelle 

law  are:  Advowsons  and  next  presen-  v.  Knecht,  99  111.  496.     "They  are 
tations,  tithes,  manoi-s.  franchises,  of-    •  in  the  nature  of  covenants  runninor 

fices,  commons,   rights  of  way,    of  with  the  land,"  says  the  court  in 

light,  wood,  water,  rents  and  annul-  Garrison  v.  Rudd,  19  111.  5'8,  "  and, 

ties:  Lee  on  A-bstracts,  *  117;  2Black.  like  them,  must  respect   the   thing 

Com.  21.  granted  or  demised,    and   must  con- 

2  Wash.  Easements,  10;  Kcelle  r.  cern   the  land  or  estate  conveyed. 

Knecht,  99  111.  496.  They  pass  by  a  conveyance  of  the 

■    ^  Smiles  ».  Hastings,  22  N.  Y.  217;  land,    under     the    term    '  appurte- 

Koelle  V.  Knecht,  99  111.  496.  nances,'     without    being    expressly 

*  See     "Easements      and    Servi-  named." 


MISCELLANEOUS    EVIDENCE    OF    AND    AFFECTING    TITLE.       311 

give  to  eacli  of  the  parties  an  easement  on  the  other's  land 
wliicli  becomes  appurtenant  to  their  several  estates  and  passes 
to  their  respective  assignees  b}'  any  mode  of  convej-ance  that 
may  be  cfiectual  to  transfer  the  hind  itself  While  the  au- 
thorities are  not  altogether  harmonious  with  respect  to  the 
legal  effect  of  covenants  and  agreemonts  providing  for  the 
construction  of  pai'ty  walls  between  adjacent  jiroprietors,  the 
decided  weight  of  authority  fully  establishes  the  propositions 
above  stated,  and  an  agreement  under  the  hands  and  seals  of 
the  parties,  containing  mutual  covenants  and  stipulations 
made  binding  on  their  respective  heirs  and  assigns,  will,  when 
duly  delivered  and  acted  upon,  create  cross -easements  in  the 
respective  owners  of  the  adjacent  lots  with  which  the  cove- 
nants in  the  agreement  will  run,  so  as  to  biiul  all  ])ersons  suc- 
ceeding to  the  estates  to  which  such  easements  are  appui'te- 
iiant/  Purchasers  from  such  parties  take  with  constructive, 
if  not  actual,  notice  of  such  agreement,  and  are  presumed  to 
have  assumed  the  burdens  as  well  as  the  benefits  which  are  in- 
cident to  it.^  "  "We  concede,"  says  Mulkey,  J,,  "the  general 
doctrine,  that  where  the  relation  of  landlord  and  tenant  does 
not  exist,  only  such  covenants  as  are  beneficial  to  the  estate 
will  run  with  the  land;  but  we  do  not  regard  the  doctrine  as 
applicable  to  cases  where  adjacent  proprietors  have  so  con- 
tracted as  to  create  mutual  easements  upon  each  other's  es- 
tates, and  entered  into  covenants  with  respect  to  the  same. 
The  new  relation  thus  created  being  of  an  intimate  character, 
involving  reciprocal  duties  with  resj)ect  to  each  other's  es- 
tates, may  be  regarded  as  an  equivalent  for  the  absence  of 
tenure,  so  as  to  give  effect  to  all  covenants  without  regard  to 
whether  they  are  beneficial  or  onerous.* "  The  abstract  should 
disclose  all  the  material  facts.     An  example  is  appended: 

»  Hart  r.  Lyon,  90    N.    Y.    663;  Rindge  r.  Baker,  57  N.  Y.  209;  Rog- 

Thomson  v.  Curtis,  28  Iowa,  229.  ers  v.  Sinsheimer,   50  N.    Y.    646; 

2  Roche  «.  Ullman,    104  111.  — .—  Hart  r.  Lyon,  90  N.  Y.  663;  Thoia- 

Main  V.   Cumston,    98   Mass.    317;  son  v.  Curtis,  28  Iowa,  229. 

Dorsey  v.  R.    R.    Co.,  58    111.    65;  ^  Roci^e  v.  Ullman,  104  111.  — 


312  ABSTKAUTS    OF    TITLE. 

Hiram  Tliomjpson  \       Party  Wall  Agreement, 

with  \       Dated,  etc.      *       *       * 

Jared B.Lake.  j       ******  ^ 

Beeites,  that  first  "party  is 
the  owner  of  the  following  described  land  [describing 
same]  and  that  second  party  is  the  oioner  of  certain  land 
adjoining  same  described  as  [describing  sam^e]  and  that  said 
fimt  jparty  jproposes  to  erect  on  his  said  land  a  hrich  build- 
ing, and  is  desirous  of  having  the  wall  between  the  two  above 
described  lots  built  ond  half  on  each  of  said  lots  for  their 
tnutual  benefit,  and  tJicit  secoixd  jparty  has  assented  to  same., 
on  condition  tJiat  he  shall  have  the  right  of  using  the  said 
wall  as  hereinafter  expressed. 

And  said  parties  covenant  and  agree  to  and  with  each 
other  as  follows: 

Said  second  party  agrees  that  if  first  party  shall  build  at 
any  time  a  partition  wall,  he  may  erect  and  maintain  one 
half  of  same  on  his,  secon-l  party'' s,  land  [state  conditions  if 
any^  and  may  enter  on  same  toith  workmen  and  materials ,' 
and  further  agrees  that  v)henever  he  shall  make  use  of  same, 
he,  or  his  heirs  and  assigns,  will  pay  to  said  first  party  one 
half  of  the  whole  cost  of  said  partition  wall. 

Said  first  party  agrees  that  second  party,  his  heirs  and  as- 
signs, may  use  said  partition  wall  for  the  benefit  of  any 
building  he  may  hereafter  erect  or  place  on  his  said  land, 
provided  he  does  not  cut  into  said  will  beyond  his  own  half 
thereof,  and  j>ays  the  price  stipulated  ahove. 

Signed  by  both  parties,  and  acknowledged  by  them  August 
1,  1S79. 

§  10.  Letters.  For  a  large  variety  of  matters  relatinor  to 
interests  in  land,  and  sales  and  conveyances  of  such  interests, 
which  by  law  are  not  required  to  be  under  seal  or  attested  by 
any  solemnities,  letter  correspondence,' notes  and  memoranda, 
are  competent  evidence.  Tiiis  is  particularly  the  case  in  re- 
gard to  trusts,  agreements  and  conditions  of  sale,  and  some- 
times in  supplying  missing  information  in  relation  to  descents, 
etc.  Hence,  it  is  not  uncommon  to  tind  letters  of  record  re- 
lating to  or  concerning  interests  in  land.     Familiar  instances 


MISCELLA.NEOUS    EVIDEXCE    OF    AND    AFFECTING    TITLE.       313 

of  letter  evidence  is  affurded  in  the  followinfr:  a  contract  for 
the  sale  of  land  made  by  letter  cori'espondence  between  the 
parties  is  valid  and  will  be  enforced,  if  the  consideration  to 
be  paid,  and  the  time  of  payment,  and  description  of  the 
property  appear  sufficiently  certain  to  enable  a  court  to  make 
a  decree.'  Where  a  person  acquires  title  to  land  in  trust  for 
another,  and  writes  him  a  letter  showini^  clearly  that  he  holds 
the  same  in  trust,  this  will  bo  sufficient  to  manifest  the  trust 
as  required  by  the  statute  of  frauds.^  The  abstract  of  a  letter 
consists  of  little  else  than  its  recitals. 

§  11.  Affidavits.  In  abstractiniij  the  proceedings  of  courts, 
in  matters  relating  to  title,  affidavits  will  occasionally  be  met 
with,  but  as  a  rule  they  are  of  such  a  nature  that  their  con- 
tents are  immaterial  to  the  examination  and  they  may  be 
disposed  of  in  a  single  line  and  frequently  passed  by  without 
notice.  There  is,  however,  another  class  of  affi'lavits  that  are 
resorted  to  by  conveyancers  uiuler  a  choice  of  difficulties,  and 
which  frequently  figure  on  tiie  records  and  in  the  abstract. 
These  are  the  ex  jjarte  sworn  statements  of  individuals  re- 
specting some  question  ra-ised  by  the  instiniments,  usually 
relating  to  deaths,  marriages,  births,  etc.,  concerning  which  no 
other  or  better  evidence  can  be  found.  Family  records  are 
not  universal,  nor  even  where,  as  is  tlie  custom  of  many  of 
the  States,  a  record  of  births,  deaths  and  marriages  is  kept  by 
proper  officers,  can  the  requisite  information  be  always  ob- 
tained. "When  such  is  the  case  resort  must  be  had  to  the 
next  best  and  most  available  testimony,  which  is  usually  sup- 
plied by  the  affidavit  of  some  person  setting  forth  his  knowl- 
edge of  the  matters  under  inquiry.  Such  an  instrument, 
it  is  true,  possesses  no  legal  validity,  and  not  being 
made  under  the  sanction  of  a  court,  or  in  any  legal 
proceeding,  is  not  strictly  evidence  for  any  pui-pose, 
yet  being  usually  all  that  can  be  adiluced,  it  has  been,  as  it 
were,  by  common  consent  ot  the  profession,  ado])ted  as  evi- 
dence in  the  examination  ot    titles  and   the  testimony  taken 

'  Noufville  V.  Slewart,  1  Hill.  1G6  ;  ^  Moore  v.  Pickett,  G2  111.  158. 

Firth  V.  Lawrence,  1  Paige,  4o4. 


3li  ABSTRACTS   OF   TITLE. 

as  corroborative  evidence  of  i^eneral  reputation,  concurrent 
possession,  etc/  Siicli  affidavits,  though  possessing  no  legal 
efficacv,  should  yet  be  attended  with  the  same  solemnities 
and  furinalities  that  are  required  In  affidavits  for  use  in  court. 
Ordinarily  where  an  affidavit  is  required,  and  the  statute  does 
not  designate  the  particular  officer  before  whom  the  act  may  be 
performed,  it  may  be  made  before  any  officer  having  general 
antliorlty  under  the  statute  to  administer  and  certify  oaths.^ 
No  legal  rules  can  apply  to  affidavits  of  this  nature,  except 
inferentially,  but  so  far  as  the  same  may  apply,  they  should 
be  construed  b^''  the  same  standard  as  afBdavits  in  legal 
proceedings."  The  contents  of  an  affidavit  may  be  shown  in 
this  manner: 


Affidavit 

hy 

William  0.  Jones. 


Svhscrihed    and   sioorii     to 
Aug.  ^,  1883. 

Recorded  Aug.  8,  1883. 
Book  119,  'page  220. 
Vefiue,  Cook  County,  Ills. 
Beaites   that,  ajji'int  was   well   acquainted   with    Robert 
Simpson,  the  identical  person  named  as  grantor  in  a  deed 
from  Robert  Simpson  to  Walter  Scott,  dated  June  1,  1879, 
and  recorded  June  2,  1879,  in  Book  52,  page  621  of  the 
records  of  Cook  County,  Ills.,  as  document  2110,  and  that 
at  the  date  of  said  deed  said  Robert  Simpson,  to  the  knowl- 
edge of  affiant,  was  an  unrnarried  man. 

Jurat  by  "  William  Black,  Notary  Public.^''    No  Notarial 
seal  of  record.     No  other  designation  of  officer. 

§  12.     Continued — General  Requisites — SufBciency.      It    is 

usual,  though  not  necessary,  for  the  affiant  to  subscribe  the  affi- 
davit, but  in  the  absence  of  positive  requirement,  an  affidavit 
which  appears  by  jurat  and  signature  of  an  officer  thereto,  to 
have  been  duly  sworn  to,  is  sufficient,*  but  if  the  officer   fails 

^Lee  on  Abstracts,  215;  Taylor  on  authority  under  the  hiw  to  adminis- 

Titles,  136.  ter  oatlis,  and  need  not  be  in   any 

^Dunn  V.  Ketchum,  38  Cal.  93;  particular  form:  Harris  r.  Lester,  80 

Wood  V.  Bank,  9  Cow.  194.  111.  307. 

^An  affidavit  is  simply  a  decUira-  *Turpin  v.  Road  Co.,  48  Ind.  45; 

tion  on  oath,  in  writing,  sworn  to  by  Cappock  v.  Smith,  54  Miss.  640. 
a  party  before  some  person  who  has 


MISCELLANEOUS    EVIDENCE    OF    AND    AFFECTING   TITLE.       315 

to  sign  tlie  jurat  it  is  invalid.'  An  affidavit  relied  upon  as  evi- 
dence of  facts  must  allci^e  tlie  facts  positively.  Averring 
them  to  exist  "as  affiant  believes  "  proves  nothing.* 

§  12.  Unrecorded  Evidence.  A  loose  and  dangerous  habit 
prevails  with  many  examiners,  of  incorporating  in  their  ex- 
aminations evidences  of  facts  not  disclosed  by  the  records 
This  is  often  the  case  of  affidavits,  releases,  etc.,  the  examiner 
usually  putting  snch  unrecorded  matter  in  the  shape  of  a  note, 
and  stating:  "Mr.  Blank  has  this  day  exhibited  to  us  an 
affidavit  by  Wm.  Parsons,  of  Providence,  It.  I.,  wherein  he 
states  that  John  Jones  was  a  bachelor  and  that  he  died  at  Prov- 
idence, P.  I.,  unmarried,"  etc.  But  this  is  the  mildest  form, 
for,  in  an  abstract  now  before  the  writer,  made  by  a  responsi- 
ble firm,  is  the  full  abstract  of  an  instrument  inserted  at  the 
request  of  their  client,  and  which  they  state  in  a  foot-note,  is 
"not  recorded  in County,  Ills."  Under  no  considera- 
tion should  this  ever  be  done  except  in  the  solitary  case  of 
titles  emanating  from  the  government.  Where  the  examiner 
possesses  reliable  data,  procured  from  the  only  authentic 
sources;  the  general  land  offices  of  the  g(jvernnient,  statutes, 
etc.,  this  is  not  only  permissible  but  should  be  done  as  a  mat- 
ter of  course.  In  all  other  cases,  if  the  client  deems  his  evi- 
dence of  sufficient  importance  to  be  inserted  in  the  abstract, 
it  should  first  be  filed  for  record  in  the  offices  of  registration 
where  it  will  be  properly  covered  by  the  examiner's  certificate 
of  search. 

I  Morris  v.  State,  2  Tex.  App.  502.      Kan.   42;   Murphy  ».   McGrath,  79 
''Thompson  v.  Higginbotham,  18      111.594. 


CHAPTER  XXII. 


MORTGAGES. 


§  1.  Nahire  of  mortgages.  §18. 

2.  Diderent  kinds  of  mortgages. 

3.  The  equity  ol  redemption.  19. 

4.  Riahts  of  mortgagor.  20. 

5.  Mortgages  as  affected  by  es- 

toppel. 21. 

6.  Merger.  22. 

7.  Equitable  mortgages.  23. 

8.  Vendor's  liens.  24. 

9.  Mortgages  proper.  25. 

10.  Statutory  forms. 

11.  Uncertainty    or  error   of  de-  26. 

scriptiun. 

12.  Covenants  in  mortgages.  27. 

13.  Eff-'ct  of  special  covenants.  28. 

14.  Special  stipulations  and  con-  29. 

ditions.  30. 

15.  Effect  of  informality.  31. 

16.  Purchase  money  mortgages.  32. 

17.  Mortgage  of  the  homestead. 


Mortgage  of  after- acquired 
property. 

Record  of  mortgages. 

Notice  imputed  from  posses- 
sion. 

Re-records. 

Trust  deeds. 

Power  of  sale. 

Assignment. 

Operation  and  effect  of  assign- 
ments. 

Formal  requisites  of  assign- 
ments. 

Release  and  satisfaction. 

Form  and  requisites  of  release. 

Release  by  trustees. 

Marginal  discharge. 

Foreclosure. 

Proof  of  title  under  foreclosure. 


§  1.  Nature  of  Mortgages.  A  mortgage,  as  defined  bj 
Chancellor  Kent,  is  a  conveyance  of  an  estate  by  way  of 
pledge  for  the  security  of  a  debt,  and  to  become  void  on  the 
payment  of  it.^  The  terra  "  mortgage"  has  a  technical  signifi- 
cation inlaw,  and  when  used  in  legal  proceedings  as  descriptive 
of  a  written  instrument,  must  be  taken  and  construed  accord- 
ing to  its  technical  legal  import.  An  equit}^  of  redemption  is 
an  essential  ingredient  and  is  always  implied,  even  though  no 


1 4  Ken^  Com.  136;  Marvin  v.  Tits- 
worth,  10  Wis.  320;  Cooper  v.  Whit- 
ney, 3  Hill,  95.  Any  instrument  of 
conveyance  that  on  its  face  purports 

(316) 


to  be  given  to  secure  a  payment  is 
merely  .i  mortgage:  Cowles  v.  Mar- 
ble, 37  Mich.  158. 


MORTGAGES.  317 

defeasance  is  expressed  in  tlie  instrument  itself.*  A  mortgaf^e, 
in  form,  purports  to  convey  a  present  legal  estate  to  the  mort- 
gagee, liable  to  be  defeated  only  by  performance  of  stipulated 
conditions,  and  so  it  was  long  held  that  the  legal  elTect  of  the 
instrument  was  to  vest  the  title  in  the  mortgagee,  subject  only 
to  the  expressed  condition  or  proviso,^  and  the  mortiragor's 
right  to  regain  his  estate,  after  condition  broken,  which  was  by 
application  to  a  court  of  chancery,  was  called  ''  the  equity  of 
redemption."  The  modern  doctrine  is,  however,  that  a  mort- 
gage is  but  a  lien  on  land,  by  way  of  security  for  the  debt, 
the  legal  title  remaining  in  the  mortgagor,  subject  only  to 
the  lien  of  the  mortgage,  and  that  the  "eipiity  of  redemp- 
tion" is  a  legal  right."  The  right  of  a  mortgagee  to  hold  the 
mortgaged  premises  as  security  for  his  debt  is  not  an  estate  in 
land   and  passes  only  by  an  {i?i~ioiiincnt  of  the  dtbt.* 

§  2.  Different  kinds  of  Mortgages.  Conveyances  for  the 
security  of  a  debt  or  the  j)rutection  of  creditors,  may  be  divided 
into  three  classes.  The  fii'st  includes  mortgages  j)roperl_y  so 
called,  being  conveyances  from  debtor  to  creditor,  expressed  to 
be  by  way  of  a  pledge  or  security  for  the  payment  of  the  in- 
debtedness, or  for  the  indemnification  of  the  grantee  against 
a  particular  loss,  and  containing  a  clause  of  defeasance  upon 
the  performance  of  the  stipulated  conditions.^  To  this  di- 
vision also  belon£>'s  that  class  of  mortu'ao-e  securities  technic- 
ally  known  as  "Trust  Deeds,"  wherein  the  debts  are  specified 
and  the  creditors  named  or   described,    but  because   of  their 

'  Walton    V.    Cody,    1    Wis.    420;  prevails  in  a  few  States,  and  in  a 

Peugh  V.  Davis,  96  U.  S.  332;  Wing-  modified  form  in  others;    as,  after 

V.  Cooper,   37    Vt.  169.     "  Once  a  condition  broken  or  default,  the  le- 

mortgage,  always   a  mortgage,"  is  a  gal  title  is  held  to  pass  to  the  mort- 

universal    rule  in    equity,   and    no  gagee:  Johnson  v.  Houston,  47   Mo. 

agreement  in  a  mortgage  to  change  227;  Fuller  v.  Eddy,  49  Vt.  11. 
it  into  an  absolute  conveyance  upon  ^Vasonr.  Ball,  56  Ga.  268;  Wing 

any  condition    or    event   whatever,  v.   Cooper,  37    Vt.   169;  Fletcher  r. 

will   be  allowed  to  prevail:  Clark  r.  Holmes,  32   Ind.   497:  Carpenter  r. 

Henry,  2  Cow.  324.  Bow  n.  42  Miss.  28;    Woods  v.  Hil- 

2  Croft  V.    Bunster,  9    Wis.    503;  debrand,  46  Mo.  284;  Astor  ».  Hoyt, 

Drayton   v.  Marshall,  1  Rice's   Eq.  5  Wend.  602. 
(S.  C.)   373;  Slewart  v.    Banow,    7  ^Mack  v.  Wetzlar,  .39  Cal.  247. 

Bush  (Ky.),  368.     This  doctrine  still  ^  \'ason  v.  Ball,  56  Ga.  2G8. 


318  ABSTRACTS   OF    TITLE. 

laro-e  number;  or  to  allow  greater  freedom  in  the  transfer  of 
the  evidences  of  the  indebtedness;  or  for  other  circumstances 
makin<'-  a  conveyance  directly  to  them  less  convenient;  the 
dcbd  is  made  to  a  mortgagee  who  combines  the  office  of  trustee, 
the  creditors  standing  in  the  position  of  cestuis  que  trust.' 

The  second  division  consists  of  conveyances  which  are  ab- 
solute in  form,  but  being  intended  as  security  for  debt  only, 
courts  of  equity  will  give  effect  to  the  intention  of  the  parties 
whatever  be  the  form  of  the  conveyance,  and  treat  same  as  a 
mortgage,  except  as  against  the  rights  oi  bona  fide  purchasers 
or  other  intervening  equities.^  These  are  known  as  *'  equita- 
ble mortgages,"  and  being  usually  dependent  on  undisclosed 
intention,  are  to  be  treated  and  considered  in  the  abstract  only 
according  to  their  manifest  legal  import.  The  third  division 
contemplates  all  deeds  of  trust  or  assignments  for  the  pay- 
ment of  creditors  generally,'  the  mortgagee  in  such  case  rep- 
resenting the  rights  of  the  mortgagor  only.*  Mortgages  may 
assume  a  variety  of  shapes  and  their  identity  become  almost 
concealed,  but  the  fact  of  security  is  always  sufficient  to  fur- 
nish an  indication  of  their  true  character.^ 

§  3.  The  Equity  of  Redemption.  The  estate  remaining  in 
the  mortgagoi-  after  the  law  day  has  passed,  before  foreclosure, 
is  popularly  but  erroneously  called  an  equity  of  redemption, 
retaining  the  name  it  had  when  the  legal  estate  was  in  the 
mortga'j;ee,  and  the  right  to  redeem  existed  only  in  equity. 
Although  a  misnomer,  it  does  not  mislead.  The  legal  estate 
.  remains  in  the  mortgagor  and  is  subject  to  dower  and  curt- 

■  Hurley  v.  Estes,  6  Neb.  386;  Tur-  '  Bank  v.  Lanahan,  45  Md.  396. 

ner  i'.  Watkins,  31  Ark.  429.    A  trust  *  Spackman  r.  Ott,  65  Pa.  St.  131. 

deed  executed  to  secure  a  debt  does  ^  A  penal  bond  to  reconvey  lands 

■not  vest  in  the  trustee  tli'^  legal  title  has  been    held  to  be  a  mortgage : 

to  the  land,  which  can  only  be  tak-  Reynolds  v.  Scott,  Brayt.    (Vt.)  75. 

en  away  from  the  grantor  by    fore-  So  of  a  deed  with  a  bond  for  recon- 

closure    or    other    legal  process  iu  veyance:     Wing  v.   Cooper,  37  Vt, 

substantial  accord    with    the   deed:  169;  but  otherwise  upon  facts  stated: 

Ingle  V.  Culbertson,  43  Iowa,  265.  Rich  v.  Doane,  35  Vt.  125.    And  gen- 

2 Sweet  v.  Mitchell.  15  Wis.  641;  erally   any  conveyance  expressed  to 

French  r.  Burns,  35  Conn.  359;  Shays  be  to  secure  a   payment:    Cowles  r. 

V.  Norton,  43  111.  100.  Marble,  37   Mich.  158. 


MORTGAGES,  319 

esy;  the  lien  of  judgments;  may  be  sold  on  execution;  and 
may  be  the  subject  of  mortgage  and  sale,  the  same  as  any 
other  estate  in  lands,  while  the  mortgagee  has  but  a  lien  upon 
the  land  as  a  security  for  his  debt,  and  the  same  is  not  liable 
to  his  debts,  or  subject  to  any  of  the  incidents  of  an  estate 
in  lands.'  The  mortgagor  retains  and  ia  possessed  of  an  es- 
tate in  the  land  in  virtue  of  his  former  and  original  right, 
and  there  is  no  change  of  ownership.  So  far  as  the  entire 
estate  is  concerned,  there  is  but  one  title  and  this  is  shared  be- 
tween the  mortgagor  and  mortgagee,  the  one  being  the  gen- 
eral owner  and  the  other  having  a  lien  which,  upon  a  fore- 
closure of  the  right  to  redeem,  may  ripen  into  an  absolute 
title,  their  resjiective  parts,  when  united,  constituting  one 
title.^  The  possession  of  the  mortgaged  premises  in  no  way 
affects  the  right  of  the  one  to  redeem  or  the  other  to  fore- 
close.' A  party  taking  a  mortgage  on  land  pending  a  bill  to 
foreclose  a  prior  mortgage  or  lien,  will  be  bound  by  the  de- 
cree, and  sale  made  in  the  pending  suit  the  same  as  if  made 
a  party  to  the  bill  to  foreclose,  and  will  be  bound  to  redeem 
from  such  sale  within  the  period  allowed  by  law.  If  he  fails 
to  do  so  his  equity  of  redemption  will  be  barred,*  and  his 
rights  under  his  mortgage  will  be  extinguished  and  lost. 

§  4.  Rights  of  Mortgagor.  The  mortgagor,  possessing  the 
legal  as  well  as  the  ecjuitable  title,  may  pei'form  any  valid  act 
relative  to  the  property,  and  make  any  contract  with  refer- 
ence to  the  title,  subject  to  the  lien  of  the  mortgage,  but  he 

^  Odell  V.  Montross,  68  N.  Y.  499;  tion;  or  he  may,  with  or  without  no- 

2  Wash.  Real  Prop.  152;  Gorham  ».  tice  to  quit,  bring  ejec  raent,    and 

Arnold,   22    Mich.    247;    Whito  v.  may  recover  possession  of  the  land 

Rittenmeyer,   30    Iowa,   263.     This  and  damages  for  use  and  occupation 

is  the  general  doctrine,  yet  in  some  after  notice  to  quit,  and  if  no  notice, 

States  it  is  still  held   that,  after  the  them  after  the  service  of   the   writ, 

expiration  of  the  law  day,  the  mort-  and  this  either  against  the  mortgagor 

gagor  or  one  occupying  his  position,  or  his  assignee:  Mason  r.  Gray,  o6  Vt. 

is  considered  as  tenant  at  suifcrance  811;    Collamef.  Langdon,   29  Vt. 

of  the  mortgagee,  and  liah'.e  to  be  32;    Welsh  v.  Phillips,  54  Ala.  39. 

evicted  without  notice  to  quit.     The  *Odell  v.  Montross,  68  N.  Y.  499. 

mortgagee,  in  such  case,  has  a  right  '  Parsons  r.  Noggle.  23  Minn.  328. 

of  entry  which  he  may  peaceably  as-  *  Pratt  v.  Pratt,  96  III.  184. 
sert   without  notice  and  without  ac- 


320  ABSTRACTS    OF    TITLE. 

can,  it  seems,  do  no  act  which  sliall  be  prejudicial  to  his 
mortgagee's  interests  or  essentially  change  the  legal  cliaracter 
of  the  land.  Hence,  no  dedication  to  public  use  of  portions 
of  a  parcel  of  land,  made  by  the  general  owner,  after  giving  a 
mortgage  upon  it,  can  aflfect  the  lien  of  the  mortgage;  but  a 
purchaser  at  a  sale  on  forecilosure  will  take  title  free  of  the 
dedication.' 

§  5.  Mortgages  as  Affected  by  Estoppel.  It  is  a  well  set- 
tled principle  of  law,  that,  ordinarily,  if  one  who  has  no  title 
to  lands,  nev^ertheless  makes  a  deed  of  conveyance,  with  war- 
ranty, and  afterward  himself  purchases  and  receives  the  title, 
the  same  will  vest  immediately  in  his  grantee,  who  holds  his 
deed  with  warranty  as  against  such  grantor  by  estoppel.  In 
such  case  the  estoppel  is  held  to  bind  the  land,  and  create  an 
interest  in  it.  The  grantor,  being  at  the  same  time  the  war- 
rantor of  the  title  which  he  has  assumed  the  right  to  convey, 
w^ill  not  be  heard  to  set  up  a  title  in  himself  against  his  own 
prior  grant,  nor  to  say  that  he  had  not  the  title  at  the  date  of 
the  conveyance,  or  that  it  did  not  pass  to  his  grantee  in  vir- 
tue of  his  deed.*  The  doctrine  is  e([iially  well  settled  that  the 
estoppel  binds  not  only  the  parties,  but  all  privies,  whether 
of  blood,  law,  or  estate;^  and  in  such  case,  tiie  title  is  treated 
as  having  been  previously  vested  in  the  grantor,  and  as  having 
passed  immediately  npon  the  execution  of  his  deed,  by  way 
of  estoppel.  So  where  a  party  makes  a  mortgage  with  express 
or  implied  warranty  of  title,  he  thereby  becomes  estopped 
from  disputing  that,  at  the  date  of  the  mortgage,  he  had  the 
title  and  conveyed  it;  and  this  estoppel  ap])lies  equally  to  all 
persons  to  whom  such  party  may  make  subsequent  convey- 
ances, by  deed,  after  he  has  obtained  a  title.  Such  subse- 
quent grantees  are  estopped  from  denying  that  the  original 
grantor  had  title  to  the  land  at  the  date  of  the  mortgage,  and 
he  must,  therefore,  for  every  purpose  as  against  his  grantees, 

^  Hague  V.  West  Hoboken,  23  N.  Jackson  v.  BuH,  1    Johns.   Cas.  81 ; 

J.  Eq.  354;  Walker  v.  Summers,  9  White  v.  Patten,  24  Pick.  324;  Pike 

W.  Va.  533.  t'.  Galvin,  29  Me  183. 

*>  Teft  V.  Munson,   57    N.   Y.  97;  ^  Teft  v.  Muuson,  57  X.  Y.  97. 
Workv.  Wellend,    13  N.   H.    389; 


MORTGAGES.  321 

be  treated  as  havin:^  the  title  to  the  hind  at  that  date.'  Nor 
does  tin's  doctrine  at  all  militate  against  the  rule,  that  the 
record  of  a  conversance  made  by  one  having  no  title,  is,  ordi- 
Tiaril}',  a  nnllitj,  and  constructive  notice  to  no  one.  When 
the  mortgage  is  in  the  statutory  form  it  is  equivalent  to  one 
containing  all  the  covenants  of  title,  and  subsequently  acquired 
titles  inure  to  the  benefit  of  the  mortgagee.'^ 

§  6.  Merger.  One  of  the  most  jierplexing  incidents  of  title 
that  can  come  to  the  notice  of  the  examiner  in  connection  with 
mortgages,  is  that  which  forms  the  caption  to  this  section,  and 
as  it  is  impossible,  in  the  brief  limits  of  this  work,  to  enter 
into  any  extended  discussion  of  the  subject,  only  passing  ref- 
erence can  be  made  to  it.  The  doctrine,  as  formulated  by  the 
earlier  decisions  is,  that  whenever  a  greater  and  a  less  estate 
nnitc  in  the  same  person,  without  any  intermediate  estate,  the 
lesser  is  merged,^  and  where  the  legal  and  equitable  estates 
meet  and  unite  in  the  same  person  without  an  intervening 
interest  outstanding  in  a  third  jiorson,  the  equitable  is  merged 
in  the  legal  estate,  the  latter  alone  subsisting.  Thus,  a  con- 
veyance by  the  mortgagor  to  tlie  mortgagee  extinguishes  the 
mortgage.*  Later  decisions  have  greatly  modified  this  rule 
and  it  is  now  held,  that  where  two  estates  meet  as  above  de- 
scribed, a  merger  does  not  necessarily  follow,  but  will  depend 
upon  the  intent  and  interest  of  the  parties,  and  where  it 
becomes  necessary  to  advance  tlie  ends  of  justice,  the  two 
estates  will  be  kept  separate;  thus,  a  deed  from  a  mortgagor 
to  a  mortgagee,  intended  as  additional  security  only,  and  not 
as  a  satisfaction  of  the  mortgafje,  will  not  mer2:e  the  mortgage 
in  the  greater  estate,  so  as  to  give  priority  to  another  mort- 
gage which  is  a  second  lien.*  So,  also,  in  the  absence  of  a 
special  agreement  to  that  eifec*",  the  taking  of  a  new  mortgage, 
from  the  same  party  and  on  the  same  ]>roperty,  will  not 
merge  or  extinguish  a  prior  one.®     The  rule,  as  first  stated, 

'Tcft  V.   Munson,  57  N.   Y.   97;  James  v.  Morey,  2  Cow.  246. 

White  V.   Patten,   24     Pick.    .S24;  *  Jacksoa  i;.  Devitt,  6  Cow.  310. 

Elder  v.  Derby,  98  111.  228;  R.  &  M.  » Huebsch  r.  Schneil,  81  111.  281. 

R.  R.  Co.  f.  Trust  Co.,  49  111.  331.  « Chris  ian   r.   Newberry,  61   Mo. 

2 Elder  r.  Derby,  98  III.  228.  446. 

'Jackson  v.  Roberts,  1  Weu.  478; 
21 


322 


ABSTRACTS    OF    TITLE. 


though  "inflexible  at  law,"  is  in  equity  controlled  by  the  ex- 
press or  implied  intention  of  the  party  in  whom  the  interests 
or  estates  unite,  and  the  mortgage  interest  will  in  equity  be 
held  to  have  merged  the  fee,  or  otherwise,  according  to  the 
actual  or  presumed  intention  of  the  mortgagee.'  With  respect 
to  merger  no  general  rule  can  be  laid  down,  for  the  question 
will  dejjend  in  eacli  case  upon  the  interests  and  intent  of  the 
parties,  and  the  demands  of  justice  and  equity.^  The  most 
rigid  investigation  must  be  made  by  counsel  wherever  an  ap- 
parent merger  occurs  in  the  title,  as  the  record  does  not  impart 
notice  of  merger,  or  of  any  other  fact  which  depends  alone  on 
the  intention  of  the  parties,  or  other  extrinsic  evidence,  and 
if  any  one  takes  a  conveyance  upon  the  assumption  that  a  for- 
mer mortgage  to  his  grantor  has  been  merged  in  a  subsequent 
conveyance  of  the  fee,  he  does  so  at  his  peril.' 

§  7.  Equitable  Mortgages.  It  is  an  established  doctrine 
that  a  court  of  equity  will  treat  a  deed,  absolute  in  form,  as  a 
mortgage  wlien  it  is  executed  as  security  for  a  loan  of  money, 
for  the  court  looks  beyond  the  terms  of  the  instrument  to  the 
real  transaction,  and  when  that  is  shown  to  be  one  of  security, 
and  not  of  sale,  it  will  give  effect  to  the  actual  contract  of  the 
parties.*     Such  a  deed  carries  with  it  all  the  incidents  of  a 


'Aiken  v.  R.  R.  Co.,  37  Wis.  469; 
Morgan  v.  Haramet,  34  Wis.  512; 
Powell  V.  Smith,  30  Mich.  451;  Wa- 
terloo Bank  v.  Elmore,  52  Iowa,  541; 
Tower  v.  Divine,  87  Mich.  443. 

^  Franklyn  r.  Hayward,  61  How. 
Pr.  (N.  y.)  43.  Where  a  mortgagor 
sells  the  mortgaged  premises,  sub- 
ject to  the  mortgage,  and  a  third 
party,  having  purchased  the  mort- 
gage, afterward,  through  mesne 
conveyances,  obtains  title  to  the  lau'l, 
he  thereby  becomes  vested  with  the 
estates  of  both  mortgagor  and  mort- 
gagee; the  owner  of  the  mortgage 
having  acquired  the  primary  fund 
for  its  payment,  which  is  of  value 
equal  to  the  mortgage,  he  thereby 
occupies  the  position  of  one  who  has 


effected  a  strict  foreclosure,  and  the 
mortgage  debt  must  be  regarded  as 
paid:  Lilly  v.  Palmer,  51  111.  331. 

3  Or.  &  Wash.  Trust  Co.  v.  Shaw, 
5  Sa\vyer,  836. 

^Peugh  V.  Davis,  96  U.S.  332; 
Klein  v.  McNamara,  54  Miss.  90; 
Carr  v.  Curr,  52  N.  T.  251;  Shays 
V.  Norton,  48  111.  100;  Turner r.  KeiT, 
44  Mo.  429;  Moore  v.  Wade,  8  Kan. 
380;  Kerr  v.  Agard,  24  Wis.  378. 
The  rule  that  parol  proof  is  admis- 
sible to  show  that  a  conveyance  of 
real  estate,  absolute  upon  its  face, 
was  intended  to  be  a  mortgage  or 
serurity  merely,  is  recognized  and 
applied  for  the  reason,  that  such  evi- 
dence is  received  not  to  contradict  an 
instrument  of  writing,  but   to  prove 


MORTGAGES.  323 

mortgaii^e,  and  the  rights  and  obligations  of  the  parties  to  the 
instrument  are  the  same  as  if  it  had  been  subject  to  a  defeas- 
ance expressed  in  the  body  thereof,  or  executed  simultaneously 
with  it.*  It  is  a  further  established  doctrine  that  an  equity  of 
redemption  is  inseparably  connected  with  a  mortgage;  that  is 
to  say,  so  long  as  the  instrument  is  one  of  security  the  bor- 
rower has  in  a  court  of  equity  a  right  to  redeem  the  property 
upon  paj'ment  of  the  loan,  and  this  right  can  not  be  waived  or 
abandoned  by  any  stipulation  of  the  parties  made  at  the  time, 
even  if  embodied  in  the  mortgage.  This  is  a  doctrine  from 
which  a  court  of  equity  never  deviates.  "  Its  maintenance  is 
deemed  essential  to  the  protection  of  the  debtor,  who,  under 
pressing  necessities,  will  often  submit  to  ruinous  conditions, 
expecting  or  hoping  to  be  able  to  repay  the  loan  at  its  maturity 
and  thus  prevent  the  conditions  from  l)eing  enforced  and  the 
projierty  sacrificed."  '  In  view  of  these  statements  how  is  the 
examiner  or  counsel  to  determine,  on  perusal  of  the  abstract, 
what  are  and  what  are  not  mortgages,  since  all  the  instruments 
appear  absolute  on  their  face?  lie  can  not.  The  legal  import 
of  an  absolute  conveyance  is  that  it  carries  the  fee,^  and  any 
contradiction  of  its  apparent  effect  must  arise  from  extrinsic 
evidence.  This  counsel  can  not,  nor  is  he  expected  to  know. 
The  record  rarely  furnishes  any  clue  to  the  true  character  of 
this  class  of  conveyances,  the  facts  governing  their  equitable 
nature  resting  entirely  in  parol,  hence  questions  of  this  char- 
acter can  seldom  arise  in  the  preparation  of  abstracts  and 
only  incidentally  in  passing  upon  titles.  The  examiner 
can  only  judge  of  the  legal  sufiiciency  and  effect  of  instruments 

an  equity  superior  to  it:  Saunders  v.  the  legal  title  pa«ses  to  the  grantee, 

Stewart,  7  Nev.  200;  Wilcox  r.  Bates,  the  pfvantor  reserving'  the  right  in 

26  Wis.  405.  equity  to  redeem.     This  right,  how- 

'  Odell  r.  Montro?s,  68  N.  Y.  499.  ever,  may  become  hanedby  the  stat- 

'^ Field,  J.,  in  Peugh  v.  Davis,   96  ute  of    limitations,    and    when    so 

U.  S.  3:'2;  Clark  v.  Henry,  2  Cow.  barred  that  an  action  for  affirmative 

324,  and  see  Walton  v.  Cody,  1  Wis.  relief  can  not  bo  maintained  thereon, 

4'20.  it  can  not  be  interposed  as  a  deffnse 

'  A  conveyance  of  the  legal  title  to  to  an  action  by  the  grantee  to  recover 

secure  the  payment  of  money  differs  possession  of  the  property:  Richards 

from  a  statutoi-y  mortgage  in  that  v.  Crawford,  50  Iowa,  494. 


32-1  ABSTRACTS    OF   TITLE. 

as  they  are  presented  on  the  record.'  Subsequent  purchasers 
for  value,  without  notice,  will  be  protected  by  the  record,  and 
where  one  in  possession  of  land,  under  a  conveyance  absolute 
on  its  face,  sells  the  satne,  and  a  court  of  equity  afterward  de- 
cides that  the  conveyance  was  only  a  mortgage,  and  the  mort- 
•'agor  was  entitled  to  his  equity  of  redemption,  the  title  to  the 
]>roperty  will  not  be  disturbed,  but  judgment  mj^ersonam  will 
be  given  against  the  mortgagee  for  the  amount  equitably  due 
by  him  to  the  mortgagor.^  Where  a  lien  on  land  is  expressly 
reserved  in  the  deed  conveying  same,  which  is  duly  recorded, 
a  clear  equitable  mortgage  is  created  of  which  every  one  is 
bound  to  take  notice;^  but  something  more  than  a  mere  reser- 
vation of  a  right  to  repurchase,  or  covenant  to  reconvey  must 
be  shown  in  order  to  convert  a  deed  absolute  on  its  face  into  a 
mortgage.  There  is  no  positive  rule  that  the  covenant  to  re- 
convey  shall  be  regarded,  either  in  law  or  equity,  as  a  defea- 
sance. The  owner  of  lands  may  be  willing  to  sell  at  the  price 
agreed  upon,  and  the  purchaser  may  also  be  willing  to  give 
the  vendor  the  right  to  repurchase,  upon  specified  terms.  Such 
a  contract  is  not  opposed  to  public  policy,  nor  is  it  in  any  sense 
illegal.*  Equitable  mortgages  arising  from  the  deposit  of  title 
deeds  are  not  generally  recognized.^ 

§  8.  Vendor's  Liens.  It  has  long  been  settled  that  the 
vendor  of  real  estate,  notwithstanding  he  has  convej'ed  the 
legal  title,  has  a  lien  on  such  estate  for  the  unpaid  purchase 
money  while  it  remains  in  the  hands  of  the  vendee,  or  volun- 
teers or  purchasers  with  notice.  This,  however,  applies  mainly 
to  implied  liens,  for  where  there  is  a  distinct  reservation  upon 

^  It  is  the  spttled  policy  of  the  law  Arraentrout's    Exr.   v.    Gibbons,  30 

to  give  security  to,  and  confidence  in,  Gratt.    (Va.)  652;  Dingley  t?.   Bank, 

titles  to  the   landed  estates   of  the  57  Cal.  467. 

country  which  appear  of  record  to  be  *  Hanford  r.  Blessing.  80  Til.  188; 

good:  McVey  v.  McQuality,  97  111.  Henly  v.  Hotaling,  41  Cal.  22;  Glover 

93.  V.  Payn,  19  Wend.  .518. 

-  Baugher  v.  Meriyman,   32   Md.  ^  Probasco  v.  Johnson,  2    Disney 

186;  Jackson  v.  McChesney,  7  Cow.  (Ohio),  96.     The  registry  of  a  mort- 

360:  Grimstone  v.  Carter,  3  Paige,  gage  is  a  substitute  for  the  deposit  of 

421.  the  title  deeds:  Johnson  v.  Stagg,  2 

3  Davis  V.  Hamilton,  50  Miss.  213;  Johns.  510. 


MORTGAGES.  325 

the  face  of  the  deed  of  snch  lien,  it  has  been  held  to  consti- 
tute a  specific  charge  upon  tlie  land  as  valid  and  effectual  as 
a  deed  of  trust  or  mortgage,*  and  further  that  the  lien  being  set 
forth  in  the  very  first  link  of  the  vendee's  claim  of  title,  pur- 
chasers from  him  have  just  as  much  notice  of  it  as  they  would 
have  had  of  a  lien  on  the  land  by  mortgage  or  trust  deed.'' 
"  Indeed,"  says  Staples,  J.,  "  it  may  be  a  question  whether  a 
reserved  lien  is  not  of  a  hi<rher  nature  than  a  mere  mortgage 
securit3%  In  many  cases  the  mortgage  is  treated  as  a  mere 
incident  to  the  debt,  whereas  the  lien  reserved  is  an  express 
charge  inherent  in  its  nature  upon  the  land  wiiich,  in  equity, 
is  the  natural  primary  fund  for  its  payment."  ' 

§  9.  Mortgages  Proper.  A  mortgage  may  be  made  by  an 
absolute  conveyance  with  a  defeasance  back,  but  this  form  has 
never  been  in  general  use  in  the  United  States,  and  is  now  ob- 
solete. The  class  of  conveyances  to  which  this  name  is  technic- 
ally applied  consists  of  an  instrument  in  form  purjiorting  to 
conve}'  a  present  estate  to  the  mortgagee,  liable  to  be  defeated 
by  the  performance  of  stipulated  conditions,  and  is  always  be- 
tween the  principals  to  the  transaction.  Where  the  mortgage 
remains  a  valid  and  subsisting  lien,  it  is  advisable  to  narrate 
same  quite  fully,  and  when  followed  by  foreclosure,  if  other 
than  by  suit  in  cliancery,  to  relate  with  minuteness  of  detail 
tiie  power  of  sale,  and  other  provisions,  by  authority  of  which 
foreclosure  was  made.  Where  the  mortgage  has  been  fully 
paid,  satisfied  and  discliarged,  there  exists  no  good  reason  why 
it  should  appear  at  all,  any  more  than  a  judgment  which  has 
been  satisfied;  yet  it  is  the  universal  custom  of  abstract 
makers  to  show,  in  tlie  regular  course  of  title,  both  the 
mortgage,  subsequent  assignments,  if  any,  and  the  discharge. 
Questions  may,  however,  sometimes  arise  that  render  an  ab- 
stract of  satisfied  liens  convenient  or  material,  3'et,  as  a  rule, 
onl}^  the  briefest  outline  should  be  presented,  sufficient  to  show 
the  transaction  and  no  more,  that  confusion  may  not  result 

*  Annentrout's  Ex'rs  v.  Gibbons,  (Tonn.)  895. 

;30  Gratt.  (Va.)  632.  "Coles    r.  Wi  her  ,   10    Reporter, 

2  Patton  V.  Hoge,  22  Gratt.  (Va.)  475. 
443;    Hines  v.   Perkins,    2    Heisk. 


32G  ABSTKACTS    OF    TITLE. 

from  tlie  iniiiu^ling  of  satisfied  and  unsatisfied  liens.  An  un- 
satisfied, uiiforeclosed  mortgage  may  be  sufficiently  presented 
as  follows :— 


Richard  Thompson   and 

Elvira^  his  wife, 

to 

Mortimer  Giddings. 


Mortqage. 
Dated  May  1,  1880. 
Recorded  May  2,  1880. 
Booh  590,  pg.  253. 
To  secure  the  jpayment   of 
$500.00  in  one  year  from  the  date  hereof.^   evidenced  hy   said 
Riclmrd  Thompson'' s  one  promissory  note  of  even  date  here- 
with. 

Conveys  land  in  Brown  County.,  Ills.,  described  as  lot  one, 
in  block  one,  of  the  Village  of  Cherry  Yale,  being  part  of 
the  northeast  quarter  of  section  ten,  town  one  north,  of 
range  five  east. 

Power  of  sale  given  on  default  after  thirty  days  notice} 
Homestead  rights  waived. 
Acknowledged  May  1,  1880. 

The  above  sufficiently  designates  the  character  and  effect  of 
an  ordinary  mortgage  between  individuals  before  default  or 
foreclosure,  or  if  followed  by  foreclosure  in  equit3^  AVhen 
foreclosed  by  advertisement,  if  the  mortgagee's  deed  is  shown 
in  the  same  examination,  instead  of  the  reference  to  the  power 
of  sale  above  given,  set  out  the  entire  clause  and  accompanying 
conditions.  When  a  foreclosure  follows  a  mortcjase  shown  in 
a  former  examination,  or  one  appearing  prior  to  the  com- 
mencement of  the  search,  a  note,  embodying  the  power  of  sale, 
should  be  appended  to  the  mortgagee's  deed,  in  the  same  man- 
ner as  the  example  given  of  a  trustee's  deed,  to  whicli  the 
reader  is  referred.  Where  the  mortgage  is  given  by  a  cor- 
poration, married  woman,  person  under  guardianship  or  other 
disability,  greater  particularity  is  of  course  required,  and  all 
special  matter,  relating  to  capacity,  power  to  act,  character 
of  parties,  etc.,  should  be  shown  as  in  casesof  absolute  con vev- 
ance  by  deed.     So,  also,  unusual  clauses,  conditions,  stipula- 

'  When  followed  by  foreclosure  thereof  fully.  See  the  example  of 
uu Jer  the  power,  set  out  the  terms      foreclosure  of  trust  deed. 


MORTGAGES.  327 

tions  or  covenants,  tending  to  shed  liglit  on  the  transaction,  or 
to  limit  or  deriiie  the  nature  of  tlie  lien  or  security  given,  must 
in  like  nianner  be  specifically  shown.  TJie  example  given  in 
this  section  is  to  be  considered  rather  as  a  suggestion  than  as 
a  form,  as  are  many  other  examples  in  this  book,  and  where- 
ever  any  of  the  above  Tnentioned  incidents  occur  they  should 
find  apjiropriate  mention.  A  mortgage,  after  judicial  fore- 
closure, although  in  some  sense  merged  in  the  decree,  remains 
a  muniment  of  title  which  passes  to  the  purchaser  at  the  mort- 
gage sale,  to  be  looked  to,  not  only  for  the  purpose  of  ascer- 
taining the  time  at  which  the  mortgage  lien  attached,  but  also 
(in  the  absence  of  express  directions  in  the  decree  limiting  the 
estate  to  be  sold)  the  estate  conveyed  by  way  of  mortgage.^ 

§  10.  Statutory  Forms.  As  in  case  of  deeds,  statutory 
forms  for  mortgages  are  now  prescribed  in  many  States,  but 
like  deeds,  from  their  meagerness  of  detail,  havenot  come  into 
very  general  use.  The  statutory  words  of  conveyance  and 
pledge  are  "  mortgage  and  warrant"  and  iii  all  abstracts  of 
such  mortgages  the  words  should  be  inserted  as  they  a])pear 
in  the  original.  The  word  "mortgages"  is  sufficient,  under 
the  statute,  to  create  a  mortgage  in  fee,  while  the  addition  of 
the  words  "  and  warrants  "  carries  the  legal  import  and  effect 
of  full  covenants  of  seizin,  right  to  convey,  freedom  from  in- 
cumbrances, quiet  enjoyment,  and  general  warrant}'. 

§  11.  Uncertainty  or  Error  of  Description.  The  observa- 
tions heretutore  made^  in  regard  to  uncertain  or  erroneous  de- 
scriptions in  deeds  are  all  applicable  to  mortgages,  for  the  policy 
of  the  law  requires  that  they  give  definite  information,  not  only 
as  to  tlie  debt  secured,  but  as  to  the  property  mortgaged  as 
well.'  Material  omissions,  or  even  misdescription,  will  not 
invalidate  the  instrument,  vvhere  other  ade(j^uate  elements  of 
identification  exist,*  but  purchasers  without  notice  will  be 
bound  only  by  the  description  furnished  by  the  mortgage.'' 

^  Vallfjo  Land  Assoc,  v.  Viera,  48  Galaway  v.   Malehou,   5  Neb.   285; 

Cal.  572.  Murphy  v.  Hendricks,  57  Ind.  593. 

^  See  "  Errors,  Omissions  and  De-  *  Slater  v.   Breese,  36    M  ch.    77; 

facts,"  page  182.  Boon  v.  Pierpont,  28  N.  J.  Eq.  7. 

*  Herman  V.  Deming,  44Conn.  124;  ^  Disque  v.  W^igh^,  49  Iowa,  588; 

riimnious  v.  Fuller,  17  Minn.   485;  Simmons  v.  Fuller,  17  Minn.  485. 


328  ABSTKACrS    OF   TITLE. 

§  12.  Covenants  in  Mortgages.  As  morti^ao^es  are  now 
drawn,  personal  covenants  are  not  usually  inserted,  but  when- 
ever they  are  inserted  they  have  the  same  operation  as  in  deeds 
of  l)ar<jain  and  sale.  A  brief  allusion  to  the  covenants  of  a 
mortgage  may  be  profitably  made,  and  where  the  words  of 
grant  which  imply  covenants  are  employed,  and  no  express 
covenants  are  inserted  in  the  instrument,  such  words  should 
always  be  stated  as  in  case  of  deeds.  The  words  "grant, 
bargain  and  sell"  are  sufficient  to  create  an  estoppel,  and  any 
subsequent  interest  the  mortgagor  in  ly  acquire  in  ani  to  the 
mortgaged  premises,  will  pass  by  the  mortgage  or  any  sale 
that  may  be  made  pursuant  to  its  terms. ^  It  is  a  rule,  how- 
ever, in  ordinary  cases  of  foreclosure,  that  the  title  ordered  to 
be  sold  is  only  the  title  which  was  held  by  the  mortgagor  at 
the  date  of  the  mortgage,^  and  when  a  mortgage  containing 
no  covenant  of  warranty  has  been  foreclosed,  and  the  relation 
of  mortgaj^or  and  mortgagee  extinguished  by  a  sale  of  the 
mortgaged  premises,  the  former  is  under  no  duty  to  protect  tJie 
title  of  the  purchaser,  nor  is  he  preclnded  from  subsequently 
acquiring  and  claiming  under  an  outstanding  and  paramount 
title.^  "  The  purchaser  is  presumed  to  know  the  co  nditions  of 
the  title  which  he  purchases,"  says  Andrews,  J.,  "and  if  it  is 
defective  his  bid  is  regnlated  in  view  of  such  defect.  If  the 
premises  bring  enough  to  satisfy  the  mortgage  debt  it  would 
be  inequitable  to  allow  him  to  claim  an  interest  subsecjuently 
acquired  by  the  mortgagor,  and  which  he  did  not  purchase 
and  was  no  part  of  the  consideration  of  the  sale.  If  there  is 
a  deficiency,  that  becomes  a  personal  charge  against  the  party 
bound  to  pay  the  debt,  in  favor  of  the  creditor.  Ditierent 
considerations  would  apply  when  the  mortgage  contained  cov- 
enants of  warranty.  In  that  case  the  consideration  paid  would 
represent  the  value  of  the  land  as  warranted,  and  the  mort- 
gagor would  be  estopped  from  setting  up  an  after-acquired 
title,  against  which  he  covenanted  in  the  mortgage."* 

'Gibbons  v.  Hoas,  95  111.  45;  Teft  sja^j^on  v.  Littell,  56  N.  Y.  108. 

V.  Mmison,  57  N.  Y.  97.  *  Jackson  v.  Littell,  56  N.  Y.  108. 

2  Kreitlabaum  v.   Melton,  49  Cal.  And    see,   Vallejo  Land    Assoc,    v. 

51.  Vieia,  48  Cal.  572. 


MORTGAGES.  329 

§  13.  Effect  of  Special  Covenants.  In  addition  to  the 
ordinary  covenants  of  title  and  warranty,  a  series  of  special 
covenants  are  fonnd  in  m')rt;i::a<2^es  which  often  do  notdirectlj' 
affect  title.  These  covenants  are  sometimes  annexed  to  con- 
ditions and  stipnhitions,  but  may  be  separate  from  them  and 
from  tlie  snbject  to  which  tlie  stipnhitions  allnde.  Of  this 
nature  is  tlie  covenant  to  keep  the  morti^a^ed  premises  insured 
for  the  beiielit  of  the  morti:aij:;ee.  Such  a  covenant  creates  a 
specific  equitable  lien  iii)on  the  insurance  money,  which  is 
valid  as  a<^ainst  the  creditors  of  the  mortgaj^^or.  The  mortgage 
being  recorded,  the  covenant  acts  upon  the  insurance  as  soun 
as  affected,  runs  with  the  laml,  and  furnishes  notice  to  third 
persons;  and  no  subsequent  assignment  or  other  act  can  affect 
the  rights  of  the  niortgagee.  It  is  not  necessary  that  the 
policies  be  assigned,  nur  that  the  mortgagee  select  the  compa- 
nies, and  any  acts  of  the  mortgagor  without  the  consent  of  the 
mortgagee  will  not  defeat  the  effect  of  the  covenant.' 

§  14.  Special  Stipulations  and  Conditions.  jMany  mort- 
gagees insist  upon  a  number  of  s])ecial  sti])ulations  and  con- 
ditions in  mortgages  acce})ted  by  them,  and  frequently  they 
are  of  such  a  nature  that  they  can  not  be  consistently  passed 
by  the  examiner  without  notice.  The  stipulation  for  insur- 
ance for  the  mortgagee's  benelit,  being  intended  to  afford  se- 
curity supplementary  to  and  cormected  with  the  mortgage, 
and  to  keep  the  mortgaged  property  itself  so  far  intact  as  a 
means  of  security  as  to  perpetuate  the  safety  of  the  mortga- 
gee's interest  in  case  the  buildings  should  burn,  is  in  equity  a 
sort  of  adjunct  to  the  mortgage,  and  is  binding  on  the  mort- 
gagor and  all  others  who  may  succeed  to  his  rights  with  no- 
tice.'^ Tlie  stipulation  that  in  case  of  a  default  in  the  pay- 
ment of  interest  the  principal  shall  immediately  become  due 
aii;1  payable,  and  that  the  mortgagee  may  immediately  pro- 
ceed to  forecloscf  is  an  essential  part  of  the  contract  and  may 

^In  Re  Sands'  Ale  Brewing  Co.,  3  A  failure  in  this  respect  constitutes 

Biss.  175.     Ill  this  matter,  the  ques-  such  a  default  as  will    justify    the 

tion  was  raisfd  by   the  assignee  in  mortgagee  in  st'lliiig  under  the  pow- 

bankniptcy  of  the  mortgagor.  er  in  the  mortgage:  Walker  r.  Cotk- 

2  Miller  r.  Aldrieh,  ol  Mich.  408.  ey,  oS  Md.  75. 


330  ABSTRACTS    OF   TITLE. 

be  enforced,'  and  tlic  same  rule  applies  to  the  similar  stipula- 
tion relative  to  the  non-payment  of  taxes,^  A  stipulation, 
whereb}^  the  mortgau;ee  assumes  and  agrees  to  pay  a  prior 
mortgage  on  the  premises,  does  not  impose  upon  the  mort- 
gagee a  personal  liability  for  the  prior  mortgage  debt,  which 
can  be  enforced  against  him  by  the  prior  mortgagee,  for  the 
stipulation  in  such  cases  is  not  a  promise  made  by  tlie  mort- 
gagee to  the  mortgagor  for  the  benefit  of  the  prior  mortga- 
gee, but  is  a  promise  for  the  benefit  of  the  mortgagor  only;  it 
is  to  protect  his  property  by  advancing  money  to  pay  liis 
debt*  In  this  respect  it  differs  from  a  similar  stipnlarion 
contained  in  an  absolute  conveyance.  All  stipulations  which 
are  essential  parts  of  the  contract,  or  which  tend  to  induce 
foreclosure  before  the  expressed  time  of  the  maturity  of  the 
debt,  particularly  when  the  mortgage  contains  a  power  of  sale 
bv  advertisement,  should  be  stated  or  definitely  alluded  to. 
§  15,  Effect  of  informality  in  Mortgages.  Mortgages,  or 
conveyances  by  way  of  security  in  the  nature  of  mortgages, 
are  seldom  void  for  informality  unless  the  informality  or 
omission  goes  to  the  groundwork  of  the  instrument,  and  a 
mortgage  or  trust  deed,  otherwise  complete  but  lacking  in 
some  formal  particular,  though  it  may  be  denied  legal  effect, 
will  be  enforced  in  equity  as  an  equitable  mortgage,  and  this 
protection  will  extend  to  the  assignee  as  well  as  to  the  origi- 
nal mortgagee.*  This  rule  has  been  held  to  apply  in  case  of 
a  trust  deed  which  omitted  the  name  of  the  trustee;^  and  to  a 
mortgage  which  did  not  express  to  be  sealed;'  and  where  the 
seal  had  been  omitted;'  where  tlie  instrument  was  imperfectly 
witnessed,  as  where  there  was  but  one  witness,  and  the  statute 
required  two;*  to  imperfectly  acknowledged  instruments;'  and 

1  Gulden  v.  0' Byrne.  7  Phil.  (Pa.)  Clur^  r.  Phillips,  49  Mo.  315. 

93;  Malcom  v.  Allen,  49  N.  Y.  448;  nicQuie  v.  Peay,  58  Mo.  56. 

Meyer  v.  Graeber.  19  Kan.  165;  Cook  *  Jones  r.  Brewer,  58  Me.  210. 

V.  Clark,  68  N.  Y.  178.  '^  Harrington   v.  Fortner,  53    Mo. 

'■*  Stancliftsf.  Norton,  11  Kan.  218.  468;  Van  Riswick    r.  Goodhue,    50 

5  Garnsey  v.  PtOgers,  47  N.  Y.  233.  Md.  57. 

The  same  rule  applies  to  a  deed  ab-  *  Gardner  r.  Moore,  51    Ga.  268; 

solute  on  its  face,  but,  in  fact,   in-  Sanborn  v.  Robinson,  54  N.  H.  239. 

tended  as  a  mortgage.  ^  Haskill   r.  Sevier,   25   Ark.  152; 

*McQuie  V.  Peay,  58  Mo.  5G;  Mc-  Zeigler  v.  Hughes,  55  111.  28S. 


MORTGAGES.  331 

even  to  the  want  of  an  acknowledgment.*  Whenever  a  mort- 
gage is  sufficient  as  between  the  parties  it  will  affect  all  third 
parties  who  have  actual  knowledge  or  notice  of  its  existence,'' 
and  purchasers  with  such  notice  will  take  subject  to  the  equi- 
ties created  by  such  defective  mortgage.* 

§  16.  Purchase  Money  Mortgages.  A  mortgage  expressed 
to  be  for  the  whole  or  a  part  of  the  purchase  money  of  the 
mortgaged  property  should  be  so  stated  in  the  abstract,  as 
such  mortgages  stand  upon  a  somewhat  ditierent  footing 
from  other  conveyances  by  way  of  security.  The  peculiar 
qualities  of  a  purchase  money  mortgage  are  derived  from 
statutes,  under  which  it  becomes  a  lien  upon  the  entire  estate 
of  the  mortgagor  in  the  land,  freed  from  any  contingent 
claim  of  the  wife,  whether  she  be  a  party  to  the  mortgage  or 
not;*  neither  will  she  be  a  necessary  party  to  a  suit  for  fore- 
closure of  a  purchase  money  mortgage,  in  the  execution  of 
which  she  had  not  joined,  if  such  suit  be  brought  in  the  life- 
time of  the  husband.^  The  fact  in  itself  is  important,  but 
may  be  stated  in  very  brief  terms,  which  is  usually  done  by 
a  parenthetical  clause  in  connection  with  the  recital  of  the 
indebtedness;  thus, 

To  secure  the  payment  of  ^4,000.00  {part  purchase 
fnoney  )  evidenced  hy  four  notes,  etc. 

The  same  fact  may,  if  so  desired,  be  stated  more  fully,  by 
a  distinct  allusion  to  the  purchase  money  clause  in  the  body 
of  the  instrument,  in  this  manner: 

This  mortgage  is  given  ( it  is  stated  )  to  secure  the  pay- 
ment of  (a  portion  of)  the  unpaid  purchase  money  for  said 
above  descrihed  premises. 

§  17.  Mortgages  of  the  Homestead.  The  jealous  care  with 
which  the  law  guards  the  homestead  is  never  more  fully  ex- 

J  Black  V.  Gregg,  58  Mo.  565.  *  Fletcher  v.  Holmes,  32  fnd.  407; 

2  Gardner  v.   Moore,  51   Ga.  268;  Amphlefc  v.  Hibbard,  29  Mich.  298; 

Sanborn  r.  Robinson,  54  N.  H.  239;  Thompson  v.  Lyman,  28  Wis.  266. 

Wilson  r.  Renter.  29  Iowa,  176.  *  Fletcher  v.  Holmes,  32  Ind.  497. 


Gardner  v.  Moore,  51  Ga.  268. 


333  ABSTRACTS   OF   TITLE. 

cinplificd  tlian  in  tlie  safei^nards  and  restraints  wliicli  it  has 
])laced  n))on  all  attempts  to  incmnber  it;  and  iij)()n  all  con- 
veyances of  ])roperty,  whether  by  deed  or  mortga;j;e,  tlie 
character  of  the  premises,  considered  in  relation  to  its  use  and 
occupancy,  is  an  inquiry  never  to  be  omitted.  In  some  States 
no  valid  mortgage  of  the  homestead  can  be  effected;'  in  a 
majority  of  the  others  such  mortgage  is  effectual,  only  wlien 
there  has  been  a  special  release  and  waiver  of  the  right;^  while 
in  all  the  States,  the  free  and  voluntary  assent  of  tlie  wife, 
the  mortgagor  being  a  married  man,  is  a  condition  precedent 
to  the  vesting  of  the  lien.^  Where  the  statute  prescribes 
formalities  relative  to  acknowledgment,  such  formalities  be- 
come inatters  of  substance,  and  their  due  observance  is  in  all 
cases  necessary,*  but  where  no  particular  mode  is  prescribed, 
any  joint  action,  properly  acknowledged,  will  probably 
satisfy  the  requirement  of  the  voluntary  signature  and  assent 
of  the  wife.*  Where  the  statute  requires  an  express  waiver, 
this  may  be  shown  briefly,  in  all  properly  executed  mortgages, 
by  a  simple  recital  of  the  fact;  as,  "homestead  rights 
waived,"  while  the  absence  of  any  words  indicative  of  such  in- 
tention miglit,  with  propriety,  be  also  noted.  The  only  ex- 
ception to  the  rules  above  stated  is,  when  the  mortgage  is 
given  to  secui-e  all  or  a  portion  of  the  unpaid  purchase  money, 
and  in  this  case  they  all  yield  to  the  superior  equity  of  the 
vendor's  lien.°  In  examinations  of  title  an  inquiry  in  pals  is 
always  raised  by  mortgages  purporting  to  be  executed  by  the 
husband  only,  as  well  as   when   the    joint  action   of  husband 

iVanWickle    v.    Landry,  29    La.  54:^;  Balkum  t'.  Wood,  58  Ala.  642; 

Ann.  3o0;  and  see  Moughon  v.  Mas-  Warner  v.  Crosby,  89  111.  320.     The 

terson,  59  Ga.  835;  Campbell  v.  Elli-  fact  that  the  deed  recites  a  waiver 

ott,  52  Tex.  16L  does  not  help  a  defective  acknowl- 

2Trustees».  Beale,    98    111.    248;  edgnient:  Best  i'.  Gholson,  89  111.465. 

Browning  v.    Havriss,  99    111.    456;  ^  Forsyth  v.  Freer,    62  Ala.   443. 

Balkum  v.  Wood,  58  Ala.  642.  Local    statutes    must  decide    these 

*Long    V.  Mostyn,  65    Ala.  543;  matters;  the  laws  and   decisions  of 

Anderson  I'.  Culbert,  55   Iowa,  233;  other  States  shed  but  little  lighten 

Griffin  v.  Proctor,  14  Bush  (Ky.),  571;  questions  of  this  character. 

Sherrid  v.  Southwick,  43  Mich.  515;  « Fletcher  v.  Holmes, -32  Ind.  497; 

Chambers  v.  Cox,  23  Kan.  393.  Amphlet  «;.  Hibbard,  29  Mich.  298; 

*Ma»h  V.  Russell,  1  Lea  (Tenn.),  Thompson  i'.  Lyman,  28  Wis.  266. 


MORTGAGES.  333 

and  wife  is  shown,  but  unacconipanied  by  any  expression  in- 
dicativeof  release  or  waiver,  wlien  such  expressed  waiver  is  a 
statutory  essential,  unless  the  mortgage  in  terms  purports  to 
be  a  security  for  the  purchase  price. 

§  18.  Mortgage  of  after  acquired  Property.  As  to  the  effect 
of  deeds  and  mortgages  of  property  to  which  the  grantor  or 
mortgagor  has  no  present  legal  title,  and  which  contain  no 
covenants  or  other  words  creating  an  estoj^pel,  there  seems  to 
be  much  diversity  of  judicial  opinion,  though  the  authorities 
are  in  the  main  harmonious  in  declaring  equitable  interests 
and  estates  to  be  proper  subjects  of  conveyance  by  mortgage.* 
The  question  frequently  arises  in  regard  to  mortgages  of  incip- 
ient or  inchoats  rights  under  the  United  States  land  laws,  and 
such  mortgages  have  usually  been  upheld  by  the  State  courts, 
particularly  when  the  transaction  was  shown  to  be  one  of  good 
faith, '^  and,  when  congress  has  imposed  no  positive  restrictions, 
the  right  is  usually  accorded  to  one  rightfully  in  possession  of 
the  soil,  to  make  any  valid  contract  concerning  the  title  to 
same,  ])redicated  Uj^on  the  hypothesis  that  he  may  thereafter 
lawfully  acquire  it.*  ,  So,  too,  where  a  railroad  company  made 
a  moi-tgage  on  the  property  "then  belonging  to  or  thereafter  to 
be  acquired"  by  said  company,  with  covenants  for  further  rea- 
sonable and  necessary  conveyances,  as  to  subsequently  acquired 
property,  it  was  held  that  the  mortgage  became  a  valid  lieu 
u])on  any  interest  in  real  as  well  as  personal  estate,  subsequentis'' 
acquired  by  the  company  for  the  use  of  its  road,  even  su- 
perior to  a  vendor's  lien  for  the  purchase  money  of  the  lands.* 
Courts  of  equity  will  enforce  specific  execution  of  contracts, 
and  give  relief  in  numerous  cases  of  agreements  relating  to 
lands  and  things  in  action,  or  to  contingent  interests  or  ex- 
pectancies, upon  the  maxim  that  equity  considers  that  done, 
which,  being  agreed  to  be  done,  ought  to  be  done,*  and  in 
furtherance  of  this  principle,  where  no  rule  of  law  is  infringed, 

*  Bank  of  Greensboro  «?.  Clapp,  76  *  Pierce  r.  Milwaukee,  etc.,  R.  R. 

N.  C.  482.  Co.,  24  Wis.  -^51;  and  see  Morrill  r. 

2  Woodbury  I'.  Dornian,  15  Minn.  Noyes,  56  Me.  4'iS.     Such  niortf.'afjes 

838;  Wallace  v.  Wilson,  30  Mo.  3:^5;  form  an  exception  to  the  general  rule 

Clark  r.  Baker,  14  Cal.  615;  Keas-  that  property  not  in  existence  cannot 

oner  v.  Markley,  25  Kan.  635.  be  conveyed. 

«Lambr.  Davenport,  18  Wall.  307.  ^  Sillers  v.   Lester,  43  Mi?',  '13; 


334  ABSTRACTS    OF   TITLE. 

and  the  ri<^hts  of  third  persons  are  not  prejndicef],  will,  in 
proper  cases,  give  effect  to  mortgages  of  subsequently  acquired 
property/ 

§  19.  Record  of  Mortgages.  Mortgages  come  within  the 
provisions  of  the  recording  acts,  and  impart  notice  in  like 
manner  as  deeds.'  They  are  governed  in  this  respect  by  the 
same  general  rules  as  affect  other  conveyances,  while  in  sev- 
eral States  they  are  further  regulated  in  regard  to  priority,  etc., 
by  special  laws.  The  registry  of  a  mortgage  is  notice  only 
to  the  extent  of  the  sum  specified  in  the  record,^  and  of  the 
property  therein  described,*  and  intending  purchasers  are  only 
chargeable  with  notice  of  such  facts  as  the  record  discloses, 
and  not  of  undisclosed  intent*  As  between  two  mortgages, 
the  first  recorded  is  the  prior  lien,^  and  where  a  mortgage  and 
convevance  of  the  same  property  are  made  at  the  same  time, 
the  mortgnge,  if  recorded  first,  will  take  precedence  of  the 
deed.''  The  rights  of  the  mortgagee  are  fixed  when  lie  piaces 
his  mortgage  on  record,  and  the  subsequent  destruction  of  the 
record,  will  not,  it  seems,  extinguish  or  destroy  the  notice  af- 
forded by  registration,  nor  injuriously  affect  the  riijhts  of  the 
morto-agee,^  while  as  between  the  original  parties,^  and  their 
lieirs,'"  the  mortgage  will  still  be  valid  and  effective  although 
unrecorded, 

§  20.  Notice  Imparted  from  Possession,  If  the  real  owner 
of  property  allows  it  to  stand  recorded  in  the  name  of  another, 
bv  a  title  translative  of  property,  he  puts  it  in  the  power  of 

Stevens  v.  li.  R.  Co.,  45  How.  (N.  Y,  ^  Disque  v.  Wright,  49  Iowa,  538; 

Pr.)  104.  Galway  v.   Malchou,   -5    Neb.    285; 

1  Beall  V.   White,  94  U.   S.   382;  Herman  v.  Deming,  44  Conn.  124. 
Rice  V.  Kelso,  57  Iowa,  115.  *  Ripley  v.  Harris,  3  Biss.  199;  Odd 

2, Johnson  v.  Stagg',  2  .Johns.  510;  Fellows  Sav.  Bank  v.  Banton,  46Cal. 

Rice  V.  Dewey,  54  Barb.  (N.  Y.)  455;  603;  Van  Aken  v.  Gleason,  .34  Mich. 

Hickman  v.  Perrin,  6  Coldw.  (Tenn.),  477. 

135;  Shannon  v.   Hall,  72  111.  354;  '  Ogden  f-.  Walkers,  12  Kan.  282. 

Van  Aken  v.  Gleason,  34  Mich.  477.  « Shannon  r.  Hall,  72  111.  354. 

3  Beekman  v.  Frost,  18  Johns.  544;  ®  Cavanangh  v.  Peterson,   47  Tex. 

even  though  there  has  been  a  mistake  197. 
in  recording.  '"  McLaughlin  v.  Ihmsen,  85  Pa.  St, 

''Simmons  I'.  Fuller,  17  Minn.  4S5;  364. 
Galway  r.  Malchou,  5  Neb.  285. 


MORTGAGES.  335 

that  other  tocreate  a  valid  mortgage  on  it,'  yet  one  wlio  takes 
a  mortojao^e  from  the  record  owner  of  hinds,  which  are  in  the 
notorious  and  exclusive  possession  of  another,  is  bound  to  in- 
quire as  to  the  claims  or  interests  of  the  person  so  in  posses- 
sion, and  is  charjjeable  with  whatever  he  mii^ht  have  learned 
by  reasonable  inquiry,  notwithstanding  he  has  searched  the 
records  and  found  no  deed.'' 

8  21.  Re-records.  A  re-record  of  a  mortfjage  is  treated 
the  same  as  a  re-record  of  a  deed;  bare  mention  is  sufficient 
provided  the  two  records  show  a  literal  conformity,  otherwise 
they  are  to  be  regarded  as  independent  instruments.  Ke- 
records  of  mortgages,  like  re-records  of  deeds,  are  frequently 
made  to  correct  errors  of  the  former  record,  and  in  every  in- 
stance the  two  should  be  carefully  compared. 

§  22.  Trust  Deeds.  Trust  deeds  in  the  nature  of  a  mort- 
gage were  once  in  very  common  use,  but  the  sweeping  cha'iges 
produced  by  the  abolition  of  the  common  law  doctrine  of 
uses  and  trusts  and  the  limitation  of  powers,  have  now  con- 
fined them  to  a  few  States,  and  even  in  those  States,  under  the 
influence  of  recent  legislation,  mortgages  are  fast  taking  tiieir 
place.  The  same  general  principles  are  applicable  to  this 
class  of  conveyances  as  to  other  deeds  intended  only  as  secu- 
rity, and  the  chief  feature  which  distinguishes  them  from  mort- 
gages are,  that  here  the  conveyance  is  not  made  to  the  cred- 
itor direct,  but  to  a  trustee  who  holds  a  naked  trust  for  the 
benefit  of  the  holder  of  the  evidence  of  the  indebtedness, 
which,  if  negotiable,  passes  from  hand  to  hand  as  other  com- 
mercial paper,  the  incident  of  the  lien  following  the  note  to 
the  hands  of  the  last  indorsee,  who,  on  default,  may  call 
upon  the  trustee  to  execute  the  trust  according  to  its  terms. 
An  unexecuted  trust,  if  still  an  existing  lien,  is  treated  in  tlie 
same  manner  as  mortgages  under  like  conditions.  The  ab- 
stract should  show  the  trustee;  the  successor  in  trust,  if  any 
is  appointed;  the  ceMnl  que  trust  named;  and  a  general  de- 
scription of  the  indebtedness  as  in  case  of  ordinary  mort- 
gages.    An  illustration  is  herewith  given: 

niuntcr  I'.  Buckncr,  29  La.  Ann.  ^cjeiiool  District  r.  Tnylor.  19  Kan. 

604;  Shepard  v.  Shepard,  36  Mich.  287;  and  see  Parsell  v.  Thayer,  39 
173.  Mich.  467. 


ABSTRACTS    OF    TITLE. 


James  Johnson^ 
to 
William  Smith,  Trus- 
tee. 


Trust  Deed. 
Dated  June  1,  188^. 
Recorded  June  5,  188'B. 
Booh  129.     Page  510. 
To  secure  the  payment  o/ $1,000 
and  interest  thereon  at   eight  jper  cent,  per  annum,  in  two 
years  from  the  date  hereof,  evidenced  hy  said  first  party'' s 
one  certain  promissory  note,  hearing  date  even  herewith,  and 
payable  to  the  order  of  George  W.  Smith. 

Conveys  land,  etc.  [Jiereset  out  the  description  of  the  prem- 
ises Gonveyedl  intrust  and  upon  the  conditions  therein  sp)eci- 
fied  and  enumerated. 
Poioer  of  sale  given  on  default  after  thirty  days''  notice. 
Homestead  rights  \oaived. 
James  11.  Harrison,  successor  in  trust. 
Acknowledged  June  1,  1882. 

If  followed  by  foreclosure,  and  the  trustee's  deed  appears 
in  the  same  examination,  insert  the  power  of  sale  in  full  as 
found  in  the  instrument,  immediately  after  the  description  of 
the  property,  thus: 

In  trust,  nevertheless,  that  in  case  of  default  in  the  p>^y- 
tnent  of  the  note  secured  hereby,  or  any  fart  thereof,  ac- 
cording to  the  tenor  and  effect  of  said,  note  ,  or  in  case  of 
waste  or  nonpayment  of  taxes  or  assessments,  or  neglect  to 
procure  or  renew  instti'ance  as  hereinafter  provided,  or  in 
case  of  the  breach  of  any  of  the  covenants  or  agreements 
herein  mentioned,  then  it  shall  be  lawful  for  the  said  party 
of  the  second  part  or  his  successor  in  trust,  on  application 
of  the  legal  holder  of  said  promissory  note  {or  either  of 
them),  to  enter  tcpon,  possess,  hold  and  enjoy  the  above  grant- 
ed premises,  and  either  with  or  without  such  entry  to  sell 
and  dispose  of  said  premises,  and  all  right,  title,  benefit 
and  equity  of  redemption  of  said  party  of  the  first  part, 
his  heirs  and  assigns  tJierein,  at  public  auction,  at  the  front 
door  of  tJie  court  house  in  Chicago,  Illinois,  or  on  said 
premises,  or  any  part  tJiereof  as  tnay  be  sp>ecified  in  the 
notice  of  such  sale,  for  the  hiahest  and  best  price  the  same 


MORTGAGES.  337 

Will  bring  in  cash,  tJdrty  days'  previous  notice  of  such  sale 
having  been  given  hy  jpuhli cation  once  in  each  week,  for 
four  successive  weeks,  in  the  Chicago  Legal  Neios,  or  in  any 
newspajyer  at  that  time  published  in  said  city  of  Chicago, 
and  to  make,  execute  and  deliver  to  the  purchaser  or  pur- 
chasers at  such  sale,  good  and  sufficient  deed  or  deeds  of 
conveyance  for  the  premises  sold.  *  *  *  *  Which  sale 
or  sales  so  made  shall  he  a  perpetual  har,  both  in  law  and 
equity,  against  the  said  party  of  the  first  part,  his  heirs  and 
assigns  and  all  other  ^><?r.'?o?is  claiming  the  2>^"cjnises  afore- 
said, or  any  part  thereof,  by,  from,  through  or  xinder  said 
party  of  the  first  part  (  or  any  of  them.) 

Second  party,  with  or  irithout  re-advertising,  is  hereby 
authorized  and  empowered  to  postpone  or  adjourn  said  sale 
from  time  to  time  at  Jiis  discretion^'  and  also  to  sell  the 
said  premises,  entire,  without  division,  or  in  jMrccls,  as  he 
may  prefer  or  think  best. 

It  is  agreed  that  in  case  of  default  in  any  of  said  pay- 
m^ents  of  principal  or  interest,  according  to  the  tenor  and 
effect  of  said  note,  or  any  part  thereof,  or  of  a  breach  of  any 
of  the  covenants  or  agreements  herein,  by  the  party  of  the  first 
part,  his  executors,  adtninistrators  or  assigns,  then,  and  in 
that  case,  the  whole  of  said  principal  sum  hereby  secured,  and 
the  interest  thereon  to  the  tim.e  of  sale,  may  at  once,  at  the  op- 
tion {^without  notice  thereof  to  said  party  of  the  first  part,  his 
heirs,  assigns  or  legal  representatives')  of  the  legal  holder 
thereof,  become  due  and  payable,  and  the  said  premises  be  sold 
in  the  manner  and  with  the  same  effect,  as  if  the  said  indebt- 
edness had  matured. 

First  party  covenants  that  in  case  of  a  sale  and  convey- 
ance as  aforesaid,  of  said  premises,  any  deed  or  deeds  of 
conveyance  made  in  pursuance  of  such  sale  shall  be  prima 
facie  evide?ice  of  the  due  compliance  with  and  performance 
of  the  terms,  conditions  and  requirements  of  this  deed  of 
trust,  by  second  party,  or  his  successor  in  trust  aforesaid,  in 
advertising  and  making  such  sale  and  conveyance,  to  the 
extent  of  the  recitals  contained  in  such  deed  or  deeds. 


338  ABSTRACTS   OF    TITI  ^ 

§  23.  Power  of  Sale.  The  power  of  sale  contained  in  a 
deed  of  trust  or  mortgage  must  be  strictly  pursued,  and  the 
utmost  fairness  must  be  observed  in  its  execution;  but  such 
strictness  and  literal  compliance  should  not  be  exacted  as 
would  destroy  the  power.*  AVhere  title  is  claimel  through  a 
trustee  or  mortgagee  acting  under  a  power,  a  reasonable  degree 
of  detail  is  necessary  in  the  abstract,  which  should  show  suf- 
ficient of  the  proceedings  as  evidenced  by  the  trustee's  or 
morto-agee's  deed,  to  indicate  a  substantial  compliance  with 
every  requisite.  When  permitted  by  statute,  the  sale  of  a 
mortgaged  estate  being  made  in  pursuance  of  a  valid  power 
given  by  the  owner,  vests  in  the  purchaser  an  estate  in  fee, 
free  from  the  original  condition  and  from  any  right  of  redemp- 
tion.^ Though  one  who  undertakes  to  execute  a  power  is 
bound  to  a  strict  compliance,  as  well  as  the  observance  of 
good  faith^  and  a  suitable  regard  for  his  principal,  yet  a  der- 
eliction in  this  respect  will  not  usually  affect  a  purchaser  in 
good  taitli,  who,  being  a  stranger  to  his  proceedings,  and 
finding  them  all  correct  in  form,  takes  the  property.'  Tlie 
omission  of  the  power  from  a  mortgage  merely  limits  the 
mode  of  foreclosure  to  that  by  bill  in  equity,^  while  its  inser- 
tion does  not  oust  the  jurisdiction  of  a  court  of  equity,  nor 
preclude  a  party  from  resorting  to  that  tribunal.  It  is  cumu- 
lative onlv.*  In  its  general  nature  it  is  a  power  coupled  with 
an  interest,  is  irrevocable,  appendant  to  the  land,  and  passes 
by  an  assignment  of  the  mortgage  and  secured  debt;^  it  is  not 

1  Waller  v.   Arnold,    71    111.   350.  sale  is  not  voifl,  bat  only  voidable  in 

Parties  to  a  mortgage  may,  by  stip-  equity,  and  it  may  be  set  aside  while 

ulation,  regulate  the  terms  of  a  pow-  the  title  remains  in  the  mortgagee, 

er  of  sale  of   the  preinises   by  the  but  not  after  transfer  to  a  bona  fide 

mortgagee;  and   the  courts  wi  1  not  purchaser:   Gibbons  v.  Hoag,  95  111. 

interfere  to  control  the  right,  in  the  45. 

absence  of  fraud,  or  of  some   statu-  *  Montague  v.    Dawes,  14  Allen, 

tory  regulations  on  the  subject:  El-  369. 

liott  V.  Wood,  45  N.  Y.  71.  ^  Cowies  v.  Marble,  37  Mich.   158. 

''  Kinsley  o.  Ames.  2  Met.  29.  ^  McAllister  v.    Plant,   54    Miss. 

'  If  a  sale  is  made  by  a  mortgagee  106. 

under  a  power  in  a  mortgage,  not  in  ^  McGuire  r.  Van   Pelt,   55    Ala. 

good  faith,  but  in  fact  for  himself,  344;    Strother  v.   Law,  54  111.  413; 
to  whom  the  purchaser  conveys,  the 


MORTGAGKS.  339 

imjiaired  hy  the  death  of  the  iiiortgao^e,  nor  by  lapse  of  time, 
if  not  unreasonable,  in  closini,'  the  sale  made  under  it;  and 
covers  tlie  equity  of  redemption,  not  only  of  a  husband,  but 
aiso  that  of  his  wife  surviving  him/ 

§  24.  Assignment.  The  interest  of  a  mortgagee,  whether 
regarded  as  a  lien  or  an  estate,  is  assignable  in  law  by  a 
proper  instrument  purporting  to  convey  the  same,  while  the 
assignment  of  the  notes  secured  by  the  mortgage  operates  in 
equity  as  an  assignment  of  the  mortgage  itself."''  In  the  latter 
case,  the  assignment  of  the  debt  carries  with  it  the  security 
for  the  debt,  and  ordinarily  whoever  owns  the  debt  is  likewise 
the  owner  of  the  mortgage."  Assignments  of  mortgages,  how- 
ever, are  usually  made  by  an  instrument  in  writing  and 
under  seal,  which,  when  recorded,  affords  constructive  notice 
of  the  rights  of  the  assignee  to  all  persons,  as  against  any 
subsequent  acts  of  the  mortgagee  affecting  the  mortgao-e; 
and  protects  as  well  against  an  unauthorized  discharge  as 
against  a  subsequent  assignment  by  the  mortgagee.*  The 
law  does  not  require  the  assignment  to  be  recorded,  as  essen- 
tial to  its  validity,  nor  is  it  necessary  for  the  purposes  of  fore- 
closure; and  assignments  are  excepted  from  the  operation  of 
the  recording  laws  of  many  of  the  States.  With  respect  to 
the  necessity  of  registration  for   priority  of  title,   the  same 

Hyde  w.  Warren,  46  Miss.  13;  Brown  it,  nor  proof  of  an  intention  on  his 

V.  Delaney,  22  Minn.  349.  part  to  keep  it  alive,  is  necessary  to 

1  Strother  v.  Law,  54  111.  413.  give  him  the  benefit  of  it :  Walker 

2  Holmes  r.  McGinty,  44  Miss.  94;  v.  King,  44  Vt.  601;  and  in  like 
Moore  v.  Cornell,  68  Penn.  St.  322.  manner  a  party  paying  a  decree  of 
An  assignment  in  law  is  not  rccog-  foreclosure  becomes  invested  with 
nized  in  ?orae  States.  the  rights  of  the  mortgagee  and  the 

^  Kurtz  V.  Sponable,  6  Kan.  305;  assignee  in  equity  of  the  mortgage; 

Nelson  v.  Ferris,  30  ]\[ich.497;  Pres-  although  in  this  case  the  mortgage 

ton  V.  Morris  Case  &  Co.,  42  Iowa,  is  in  fact  paid,  yet  equity  will  re- 

549.     Where  a  party  is  so  related  to  quire  it  to  subsist  until  every  party 

a  mortgage  that  he  is  not  personally  who  owes  a  duly  under  the  mort- 

liable  upon  it,  but  is  obliged  to  pay  gage     shall    have    discharged    it : 

it  to  save  his  estate,  and  he  does  Wheeler  v,  Wilhird.  44  Vt.  640. 
pay  it,    the  payment  will    be   pre-  *  Viele  v.  .ludson,  82  N.  Y.  32; 

sumed  to  be  made  for  that  purjiose.  Stein  v.  Sullivan,  31  N.  J.  Eq.  409; 

and  in  such  case  no  assignment  of  Torrcy  v.  Dcavitt,  12  Reporter,  508. 
the  mortgage  to  the  person  paying 


310  ABSTRACTS   OF   TITLE. 

i^eiicnil  rule  prevails  between  different  assignees  of  a  mortgage 
us  between  grantees  in  ordinary  deeds,'  and  a  release  by  the 
mortgagee,  no  assignment  appearing  of  record,  will  effectu- 
ally divest  the  lien,  notwithstanding  an  assignment  has  in  fact 
been  niade.'^  In  a  few  States,  a  mortgage  is  not  assignable, 
either  by  the  statute  or  by  the  common  law;  the  assignment 
of  the  note  carries  tlie  mortgage  with  it,  but  only  in  equity, 
and  trust  deeds  given  as  security  for  a  loan,  being  regarded 
in  the  nature  of  mortgages,  stand  upon  the  same  footing  as 
regards  assignability/ 

§  25.  Operation  and  Efifect  of  Assignments.  Though 
there  are  not  wanting  authoritative  decisions  to  the  contrary, 
yet  the  later  and  more  generally  received  doctrine  seems  to 
be,  that  an  assignment  is  to  be  regarded  only  as  the  traTisfer 
of  a  mere  chose  in  action,  and  not  an  interest  in  lands,  and 
that  the  assignee  takes  "it  charged  with  the  notice  which  his 
assignor  had  of  prior  incumbrances,  and  subject  not  only  to 
any  latent  equities  that  exist  in  favor  of  the  mortgagor,  bat 
also  subject  to  the  equities  in  favor  of  third  persons.* 

§  26.  Formal  Requisites  of  Assignments.  Though  the 
earlier  decisions  hold  that  the  interest  of  a  mortgagee  may  be 
transferred  or  conveyed  by  the  same  form,  of  deeds  by  which 
the  owner  of  the  legal  estate  can  convey  it,^  the  current  of 
later  cases  pronounces  a  contrary  doctrine.  ^  The  mortgagee's 
interest,  being  a  mere  chattel  interest,  is  inseparable  from  the 
debt  it  is  given  to  secure,  and,  not  constituting  an  estate  or 
interest  in  the  land,  will  not  pass  by  any  conveyance  of  the 

1  Wiley  V.  Williamson,  68  Me.  *  Sims  r.  Hammond,  33  Iowa,  368; 
71;  Trust  Co.  v.  Shaw,  5  Sawyer,  Mason  v.  Ainsworth,  58  111.  163; 
336.  Schofer  v.  Reilly,  50  N.  Y.  61 ;  Crane 

2  Mitchell  V.  Burnham,  44  Me.  t5.  Tm-ner,  67  N.  Y.  437;  Coffing  r. 
303;  Bank  v.  Anderson,  14  Iowa,  Taylor,  16  III.  457;  Olds  v.  Cum- 
544;  Johnson  v.  Carpenter,  7  Minn.  minors,  31  111.  188. 

176;  Union  Colleg-e  v.  Wheeler,  61  MVelch  v.  Priest,  8   Allen.  165; 

N.  Y.  88;  Smith  v.  Keohane,  6  111.  Cutler  v.  Davenport,  1  Pick.  81.  And 

App.  585.  see  Conner  v.  Whitmore,  62  Me.  186; 

3  Olds  ».  Cummings,  31  111.  188;  Stewart  v.  Barrow,  7  Bush  (Ky.), 
Walker  v.  Dement,  42  111.  272;  Baily  368.  But  this  is  when  the  legal  es- 
V.  Smith,  14  Ohio  St.  396.  tate  passes  to  the  mortgagee. 


MORTGAGES.  341 

land.  Hence,  a  deed  of  all  the  grantor's  "estate,  title  and  in- 
terest" in  the  mortgaged  premises,^  or  a  conveyance  of  all  his 
"  lands,  tenements  and  hereditaments,"  ^  will  not  operate  as 
an  assignment  of  a  mortgage.*  The  interest  owned  hy  the 
mortgagee  has  reference  solely  to  the  mortgage  debt,  and  any 
instrument  which  describes  the  parties  and  the  indebtedness, 
and  sufficiently  identifies  the  mortgage,  will  be  elfective  as  an 
assignment  without  reference  to  the  mortgaged  premises, 
while  the  instrument,  in  form,  should  purport  to  be  a  trans- 
fer of  the  mortgage  itself  and  of  the  debt  thereby  secured, 
and  not  of  the  mortgaged  premises.* 

§  27.  Release  and  Satisfaction.  Where  no  satisfaction 
appears  of  record,  the  law  will  presume  a  payment  of  the 
debt  it  was  given  to  secure,  where  the  mortgagee  has  failed 
to  exercise  his  right  of  foreclosure  for  the  period  of  twenty 
3'ears,*  and  the  mortgage  will  cease  to  be  a  lien  after  the 
expiration  of  that  period."  The  mortgage  ma\'-  also  be  satis- 
fied by  foreclosure,  but  the  term  •* satisfaction"  as  ordina- 
rily used,  refers  to  a  specific  acknowledgment  of  payment 
and  discharge  of  the  lien  as  evidenced  by  some  written  in- 
strument. Though  the  terms  "  release  "  and  ''  satisfaction  " 
are  used  interchangeably,  there  is  yet  an  important  distinction 
between  them.     A  satisfaction  implies  a  payment  of  the  debt, 

'Swan  V.  Yaple,   3o   Towa,    248;  profess  to  act  upon  the  land,  would 

Runyan  V.  Messercau,  11  Johns.  534;  not  pass  the  mortgagee's  estate  in 

Delano  v.  Bennett,  90  111.  533.  the  land,  bat  only  the  security  it  af- 

2  Mack  j;.  Wetzlar,  39  Oal.  247.  fords    to  the    holder  of   the    debt: 

^  A  conveyance  of  the  mortgagee's  Williams  r.  Teachey,  85  N.  C.  402. 

interest  in  the  land  before  foveclos-  *  Goodwin  r.  Baldwin,  59  Ala.  127; 

ure,  and  without  an   assignment  of  Lawrence  r.    Ball,  14    N.    Y.    477; 

the  debt,  is  considered  in  law  a  mere  Emory  v.  Keighan.  88  111.  482. 

nullity,  and  passes  no  title:  Delano  ®  This  follows  as  a  result  of  the 

«).  Bennett,  90  111.  533.  statute  of   limitations.      See,   also 

*  When  the  mortgage  is  regarded  Blackwell  r.    Barnott,  52  Tex.  326; 

as  a  mere  incident  to  the  debt  this  Whitney   r.    French,    25    Vt.    663; 

would  be  sulticient,  but  more  would  Pollock  r.  Maison,41  111.  516;  Locke 

be  required  in  States  where  the  mort-  r.  Caldwell,  91    111.417;  and  consult 

gagee  hoUls  the  legal  title  and  estate.  4  Kent's  Com.  189;  Jackson  v.  Wood, 

In  such  States  an  assignment  of  the  12  Johns.  242. 
mortgage,  in  terms   which   do    not 


3i:2  ABSTUACTS   OF   TlTf.K. 

and  Ipm  facto  an  e.xtiiiguisliinent  of  tlie  lien,  whereas  a  re- 
lease or  discliari^e  may  relieve  the  land  from  the  burden  of 
the  debt  without  in  the  least  inij)aii-ini)^  its  legal  efficacy.' 

§  28.  Form  and  Requisites  of  Release.  The  general  requi- 
sites of  a  release  of  mortgage  differ  somewhat,  according  to 
the  light  in  which  it  is  to  be  regarded.  Where  the  mortgage 
retains  its  common  law  character  of  a  convej'ance  of  the  legal 
estate,  a  deed  under  seal  with  apt  words  of  conveyance  would 
be  necessary  to  revest  the  title  of  the  mortgagor,  which 
miglit  be  effected  by  a  deed  of  release  and  quitclaim;^  but 
wdiere  it  is  regarded  only  in  the  character  of  a  lien  or  security, 
any  instrnment  showing  an  intention  to  relieve  the  land  from 
the  burden,  or  acknowledging  payment  or  satisfaction  of  the 
debt  secured  by  the  mortgage,  would  be  sufficient  to  divest 
the  lien  and  restore  the  land  to  its  original  condition.^  The 
hitter  instrnment  is  that  now  generally  used,  and,  as  a  rule,  it 
is  required  by  statute  to  be  executed  by  the  mortgagee  or  his 
assignee,  and  acknowledged  or  proved  in  the  manner  provided 
by  law  to  entitle  conveyances  to  record,  and  must  specify  that 
such  mortgao'e  has  been  paid,  or  otherwise  satisfied  or  dis- 
charged. No  other  formalities  seem  necessary,  and  such  cer- 
tificate, popularly  known  as  a  "satisfaction  piece,"  has  the 
same  efteet  as  the  old  deed  of  release.  In  a  few  States,  a 
modified  form  of  a  release  deed  is  still  preserved,  though  its 
operation  and  effect  is  almost  identical  with  the  certificate  of 
payment,  or  "  satisfaction  piece,"  of  the  other  States.  It  is 
customary,  but  not  essential,  to  describe  the  property,  and, 
except  in  case  of  partial  releases,  such  description  has  no 
other  effect  than  to  give  greater  certainty  to  the  instrument 
in  the  identification  of  the  land.  A  release  or  satisfaction 
immediately  follows  the  mortgage,  and  may  be  shown  in 
brief  terms.* 

*  Adginton  v.  Hefner,  81  III.  341.  Lucas  r.  Harris,  20  111.  165. 

2  Waters  v.  Jones,  20  Iowa,  36-s  *  A  satisfaction  piece  is  a  convey- 
Allard  V.  Lane,  18  Me.  9;  Perkins  r,  ance  within  the  meaning-  of  the  re- 
Pitts,  11  Mass.  125;  and  see  2  Jones  cord'ng  acts,  and  one  who  buys  or 
on  Mort images  (2d  ed.),  %Ti1  et  seq.  advances   nioney  to  be  secured    iy 

^  Headly   v.    Gaundry,    41    Baib.  nioitgag'e  on  the  prerai-es  is  a '-o»a 

279;  Thornton  v.  Irwiil,  43  Mo.  153;  Me  purchaser  within  the  provisions 


MOUTUAGKS.  C-13 

Lather    L.    Peaslee  )      li  el  ease. 

to  >     Dated,  etc. 

James  Enrig/ii.      )        ******** 

Consideration,  $1.00,  etc} 
Releases  all  right,  title,  interest,  etc.,  acquired  hy  mort- 
gage, ea-ecnted  by  second  to  first  party,  hearing  date  April 
1,  18S0,  and  recorded  April  2,  1880,  in  hook  306  of  Records, 
page  597,  to  the  premises  therein  described  (  describing  same) 
or,  to  the  pretnises  therein  described  as  follows,  etc.  [  Where 
the  release  is  partial j  to  so  much  of  the  pQ'emises  therein  de- 
scribed as  follows  :  ]     Acknowledgment. 

This  is  an  abstract  of  the  release  deed  in  use  in  Illinois, 
A  satisfaction  or  certificate  of  payment  will  require  only 
slightly  different  treatment. 

§  29.  Release  by  Trustee.  Where  by  a  trust  deed,  duly  re- 
corded, land  is  c  »nveyed  to  trustees  in  fee,  and  they  are  author- 
ized to  release  same  to  the  grantor  upon  payment  of  tlie 
indebtedness  thereby  secured,  a  release  before  payment  would 
be  a  breach  of  their  trust  and  would  be  unavailing  in  equity 
to  any  one  who  had  knowledge  of  the  breacli.''  But  being 
vested  with  the  legal  title  the  same  would  pass  by  their  deed 
of  release  to  the  releasee,'  and  a  second  conveyance  b}''  him  to 
one  having  no  knowledge  of  such  breach,  tli^  records,  or  a 
conveyancer's  abstract  thereof  showing  the  land  to  be  unincum- 
bered, would  vest  the  legal  title  in  such  grantee,  or  if  made 
by  way  of  pledge,  would  entitle  the  indebtedness  thereby  se- 
cured to  ])riority  of   payment.* 

§  30.  Marginal  Discharge.  A  release  or  discharge  made 
by  entry  upon  the  margin  of  the  record  of  the  mortgage  or 
other  instrument,  is  in  common  use  in  all  the  States,  and  when 

of  said  acts  :  Bacon  v.  Van  Schoon-  ^  Ins.  Co.  v.  Eldredpre,  102  U.  S. 

hovon,  87  N.  Y.  446.     It  takes  the  545. 

place  of  a  release  :    Jhid,  and   see  *  Taylor  v.  Kinpr,    6   Munf.    (Va.) 

Merchant  v.  Woods,  27  Minn.  896.  358;  Denr.  Trautnian,  7  Irod.  (X.  C.) 

'  This  alludes  to  the  payment  of  155. 

the  morfcofage  debt.     It  is  unneces-  *  Williams  r.  Jackson,  15  Reporter, 

sary  to  set  out  the  clause  ;    "$1.00,  705;    Barbour  r.    Scottish- Aiuericau 

etc.,"  sufficiently  indicates  its  nature.  Mtg.  Co.,  102  111.  121. 


o-il  ABSTRACTS    OF   TITLE. 

made  by  the  owner  of  tlie  mortgage,  with  wliatever  fi^rnialities 
ir.av  be  prescribed  by  law,  is  as  effectual  in  divesting  the  lien 
of  record  as  a  formal  and  separate  satisfaction  piece  or  release. 
It  will  be  understood,  liowever,  that  the  authority  of  the  person 
so  undei'taking  to  make  the  discbarge  must  affirmatively  appear 
of  record,  for  a  marginal  entry  of  satisfaction  hy  a  stranger, 
without  authority,  is  void,  although  he  claims  to  be  the  as- 
signee of  the  mortgage  and  owner  of  the  indebtedness,*  and 
where  a  person  purpoi^ting  to  be  the  "assignee  of  said  mort- 
gage" assumes  to  discharge  same,  but  no  assignment  appears 
of  recoi'd,  this  constitutes  a  radical  defect  in  the  title  ^  which 
should  be  remedied  before  it  is  accepted.  A  marginal  release 
or  satisfaction  should  immediately  follow  the  mortgage  it  af- 
fects, and  being  brief  itself  the  abstract  is  correspondingly  so, 
consisting  principally  of  a  recital  of  the  release;  thus, 

Oil  the  margin  of  the  record  of  the  foregoing  is: 

Thomas  Smith  ]       Satisfaction  of  Mortgage. 

{Assignee)  '         I      Dated  June  ^i,  1883. 
to  '       Recites  that  the  ^'•wlthin''^  mort- 

William    Jones.         J  gage  has  been  fully  jyaid^  satis- 
fied and  discharged. 
Not  witnessed.^ 

"When  a  moj-tgage  or  deed  of  trust  is  duly  recorded,  the  per- 
son whose  property  is  incumbei-ed  thereby  is  entitled,  upon 
fully  paying  and  satisfying  the  debt,  to  secure  which  such 
mortgage  or  trust  deed  was  given,  to  have  satisfaction  of  the 
same  entered  upon  the  margin  of  tlie  record.  And  a  mort- 
gagee or  trustee  who  fails  or  refuses,  when  duly  requested,  to 
enter  up  such  satisfaction  or  to  execute  a  deed  of  release,  is 
liable   in  damages  to  the  party  ag^rieved.^ 

§  31.  Foreclosure.  Foreclosures  by  entry  and  possession, 
or  strict  foreclosures,  are  now  rarely  pursued  or  allowed  in  a 

^DeLaureal  v.  Kemper,    9    Mo.  be  witne-sed  by  the  recorder  or  offi- 

App.  77.  c^r  having  charge  of  the  records. 

^Torrey  v.  Deavitt,    12  Reporter,  ^  Verges  t\  Giboney,  47   Mo.  171; 

508.  Shei'woodf.  Wilson,  2  Sweeny  (N. 

2  When  such  is  the  case.  Y.)  648.      This  is  the  general  statu- 

*  Marginal  releases  must,  as  a  rule,  tory  doctrine. 


MORTGAGES.  345 

majority  of  the  States,  wliile  in  many  they  are  positively  pro- 
hibited. Tiiey  are  regarded  by  courts  as  severe  remedies,  in- 
asmuch as  tliey  transfer  tlie  absolute  title  without  sale,  and 
sometimes  without  notice,  no  matter  what  the  value  of  the 
premises.  In  like  manner  foreclosures  by  advertisement  and 
sale,  so  called,  are  now  genei-ally  discountenanced  even  where 
allowed,  and  resort  is  usually  had  to  a  court  of  equity  to  per- 
fect a  title  acquired  tlirou<^h  this  channel.  In  foreclosure  by 
advertisement  the  niu!'ti;-a;;-ee's  or  trustee's  deed  recites  the 
proceedin<^s,  wliile  foreclosures  in  equity  are  shown  by  a 
summary  of  the  ])r()ceedinii^s,  decree  and  sale. 

§  32.  Proof  of  Title  under  Foreclosure.  To  sustain  a  title 
Tinder  foreclosure  it  would  be  necessary  to  show:  tlie  mortgage; 
the  judgment  roll;  the  decree;  the  sale;  and  the  officer's  deed. 
The  abstract,  therefore,  should  disclose  in  a  connected  and 
orderly  manner  the  essential  features  of  each  of  the  steps  and 
proceedings  above  enumerated,  and  whenever  practicable,  in 
the  order  there  ariven.  The  mortgage  need  not  be  minutely 
described,  nor  is  it  necessary  that  the  power  of  sale  be  given.' 
General  references  are  sufficient.  The  judgment  roll  must 
show  the  regularity  of  the  proceedings  and  the  juiisdiction  of 
the  court  both  as  to  the  subject-matter  and  the  parties.  Final 
and  interlocutory  decrees  must  show  every  material  point 
passed  upon.  The  sale  is  evidenced  by  the  officer's  certificate 
of  sale,  report  and  confirmation.  The  deed  follows  as  a  part 
of  all  that  has  preceded  it,  and  the  whole  constitutes  but  one 
transaction.  Each  of  the  several  separate  features  are  integral 
and  necessary  parts. 

'This  feature  derives  most  of  its  foreclosure  by  advertisement  under 
importance  where  there  has  been  a      the  power. 


CHAPTER  XXIII. 


WILLS. 


Conditional  devise — marriage. 

Conting'ent  remainders, 

Contingent  reversion. 

Devise  to  married  woman. 

Devises  to  executors  in  trust. 

Bequest  to  devisee  by  descrip- 
tion. 

Precatory  trusts. 

Perpetuities. 

Lapsed  devise. 

Devises  for  the  payment  of 
debts. 

Charges  on  lands  devised. 

Residuary  clause. 

Codicils. 

Formal  requisites. 

Abstract  of  wills. 

Method  of  arrangement. 

Practical  examples. 

Probate  of  wills. 

Effect  of  probate. 

Foreign  probate. 

Abstract  of  probate  proceed- 
ings. 


§1.  Wills  Generally.  The  subject  of  testamentary  con- 
vej'ances  can  only  be  treated  briefly  and  in  outline.  Tliej'' 
occur  in  the  lives  of  every  title  of  long  standing,  and  present 
a  greater  variety  of  phases  and  give  rise  to  more  questions  in 
construction,  than  any  other  species  of  conveyance.  Tliey 
have  been  the  subject  of  much  legislation,  and  of  a  vast  mass 
of  inharmonious,  conflicting  and  contradictory  decisions.  As 
muniments  of  title  they  should  be  of  equal  dignity  with 
deeds,  after  projjer  probate  and  administration;  but  the  sub- 

(346) 


J 1. 

Wills  generally. 

§22. 

2. 

Nuncupative  wills. 

23. 

3. 

Nature  of  testamentary  titles. 

24. 

4. 

Devises. 

2). 

5. 

Operation  and  effect  of  devises. 

26. 

6. 

Validity  of  devises. 

27. 

7. 

Testam  -ntary  capacity. 

S. 

Construction  of  wills. 

28. 

9. 

Repugnancy. 

29. 

10. 

Descent  or  purchase. 

3). 

11. 

Words  of  grant. 

31. 

12. 

Words  of  purchase  and  limita- 

tion. 

32. 

13. 

The  rule  in  She^ly's  case. 

3i. 

14. 

Interpretation     of    particular 

34. 

words  and  phrases. 

35. 

15. 

Words  which  pass  real  estate. 

36. 

16. 

Limitations  and  remainders. 

37. 

17. 

Devise  to  a  class. 

38. 

IS. 

Gifts  of  the  income  of  realty. 

39. 

19. 

Devise  with  power  of  disposi- 

40. 

tion. 

41. 

20. 

Indeterminate  devise. 

42. 

21. 

Devise  on  condition  precedent. 

WILLS.  '64:1 

tleti'es  which  liave  been  incorporated  into  the  laws  oroverning 
their  construction  have  rendered  them  less  so,  except  in  cases 
of  direct,  absolute  and  unincumbered  jcifts.  In  the  foUowino: 
paragraphs  an  attempt  has  been  made  to  briefly  enumerate  a 
few  of  the  leading  characteristics  of  this  class  of  conv^eyances, 
and  to  point  out,  in  a  general  way,  some  of  the  questions 
that  arise  in  examination  of  titles  acquired  by  way  of  testa- 
mentary gift.  This  has  been  done  rather  in  a  suggestive,  than 
an  exhauf^tive  manner,  for  the  narrow  limits  of  our  book  will 
permit  of  none  other,  and  they  are  simply  intended  as  clues 
or  reminders  to  stimulate  the  examiner,  and  direct  his  atten- 
tion to  matters  that  otherwise  might  have  escaped  his  obser- 
vation. 

§  2.  Nuncupative  Wills.  Oral  declarations  of  a  testa- 
mentary character  made  i?i  extremis  are  only  available  in  the 
disposition  of  personal  property,  and  hence  are  not  consid- 
ered in  the  examination  of  titles.* 

§  3.  Nature  of  Testamentary  Titles.  One  who  takes  under 
a  will  is  regarded  as  a  purchaser  equally  with  him  who  takes 
under  a  deed,  but  the  estate  and  title  in  the  hands  of  a  devisee, 
while  as  full  and  ample  as  though  derived  by  deed,  does  not 
possess  that  indefeasible  character  which  attaches  to  it  in  the 
latter  case.  An  innocent  purchaser  by  deed  takes  the  title 
unaffected  by  latent  equities,  and  the  undisclosed  rights  of 
tliird  persons,  but  the  devisee  acquires  only  the  title  of  the 
testator  as  it  existed  at  the  time  of  his  death,  with  all  its 
infirmities  and  imperfections,  and  sul)ject  to  all  equities  and 
liens  in  favor  of  strangers.  Such  title,  though  covering  the 
fee,  or  whatever  interest  may  have  been  granted,  is  liable  to 
be  defeated  during  the  course  of  administration  by  a  sale  by 
the  executor  in  satisfaction  of  the  debts  of  the  decedent;'' 
or  by  the  very  instrument  of  its  conveyance,  when  legacies 
thereby  given  are  expressly  charged  U])on  the  realty  and  there 
exists  a  deficiency  of  personal  assets;**  or  where  the  devise  is 

'  Lowis  r.  Aylott,    4')    Tox.    190;  sj-ckle  v.  Richardson,  13  111.  171. 

SmithcU'al  v.   Smith,    G4   N.  C.   52;  MVood    v.    Sampson,    2')    Ciratt. 

Campbell  r.  Camplu'll,  21  Mich.  4:'.8.  (Va.)    845;    Lewis    v.  Darlinp,    16 

^Hillr.  Treat,  07  Me.  501  ;  Van-  How.   1.     A  devisee  who  takes  an 


3-18  ABSTRACTS    OF    TITLE 

conclicd  in  ambignous  or  uncertain  lani,niage  requiring  a  ju- 
dicial construction.  The  two  former  contingencies  can  arise 
only  prior  to  final  settlement;  the  latter  at  any  time  before 
the  bar  of  the  statute  lias  intervened.  The  title  to  lands  de- 
vised vests  in  the  devisee  immediately  upon  the  deatli  of  the 
testator;  and  such  devisee  is  entitled  to  the  immediate  pos- 
session of  the  land  devised,  and  to  hold  the  same  until,  when 
necessary,  they  are  subjected  by  the  executor  to  the  payment 
of  del)ts.' 

§  4.  Devises.  "Devise"  is  the  generic  term  employed  to 
denote  a  gift  of  real  property  by  a  person's  last  will  and  tes- 
tament, and  is  distinguished  from  "  legacy  "  which  applies  only 
to  personalty.  By  analogy,  the  person  to  whom  the  gift  is 
made  is  called  a  devisee,  and  the  testator  is  frequently  spoken 
of  as  the  devisor.  The  term  "bequest"  is  of  indisci-iminate 
application  and  includes  both  "devise"  and  " legacy. "'•' 

§  5.  Operation  and  Effect  of  Devises.  It  is  a  rule  of  the 
common  law,  that  a  will  operates  only  upon  real  estate  owned 
by  the  testator  at  the  time  of  making  the  same,  and  the  title 
to  which  he  retained  to  the  time  of  his  decease.  This  rule 
lias  been  very  generally  changed  b}'  statute,  which  substitutes 
therefor  a  more  reasonable  rule  to  the  effect  that  every  will  that 
shall  be  made  by  a  testator,  in  express  terms,  of  all  his  real 
estate,  or  in  any  other  terms  denoting  his  intent,  to  devise  all 
his  real  pro])erty,  shall  be  construed  to  pass  all  the  estate 
which  he  was  entitled  to  devise  at  the  time  of  his  death.^  It 
is  the  application  of  this  rule  which  gives  to  the  residuary 
clause  much  of  its  present  importance. 

estate  under  a  will  assumes  the  pay-  Harvey,  1  Fost.  ("N".  H.)  514;  Laller- 

ment  of  legacies  imposed  upon  him  stedt  v.  Jennings,  23  Ga.  571. 

by  the  terms  of  the  will,  and  equity  ^  Canfield  v.   Bostwick,  21   Conn, 

will  regard  him  as    a    trustee   and  550;   Peters  v.  Spillman,  18  111.  373. 

entertain  a  bill  to   compel  him   to  But    though  it  is  a    general    rule, 

perform  his  trust:  Mahar  v.  O'Hara,  that  a  will  is  held  to  speak  from  the 

4  Gilm.  (111.)  424  ;  Burch  v.  Burch,  death  of  the  testator,  it  is  otherwise 

62  Ind.  136.  where  the  language  used  repels  the 

^  Hall  V.  Hall,  47  ^la.  290  ;  Ham-  presumption,  taking  into  considera- 

ilton  V.  Porter,  63  Pa.  St.  332.  tion  the  entire  instrument:    Updike 

2  Dow  V.  Dow,  36  Me.  211;  Ladd  v.  v.  Tompkins,  100  111.  406. 


WILLS.  3-19 

§  6.  Validity  of  Devises.  The  several  States  of  the  Union 
possess  the  power  to  regulate  the  tenure  of  real  property  within 
tlieir  respective  limits,  the  mode  of  its  acquisition  and  transfer, 
the  rules  of  its  descent,  and  the  extent  to  which  a  testamentary 
disposition  of  it  may  be  exercised  by  its  owners  as  well  as  the 
persons  or  classes  of  persons  who  may  take  under  such  dispo- 
sition.^ Hesort  must  therefore  be  had  to  the  statute  to 
determine  the  validity  of  all  bequests,  and  where  that  defines 
or  enumerates  the  persons  or  classes  who  may  take,  a  devise  to 
persons  or  classes  not  therein  specified  will,  it  seems,  be  void." 
Where  a  devise  is  void  by  the  rules  of  law,  the  land  descends 
to  the  heirs  at  law  of  the  testator.' 

§  7.  Testamentary  Capacity.  Every  work  on  Avills  is 
largely  devoted  ro  the  subject  of  testamentary  capacity.  This 
is  a  subject,  however,  that  does  not  ordinarily  arise  in  exam- 
inations of  title  otherwise  than  as  it  incidentally  apjiears  in 
passing  the  proceedings  relative  to  probate.  The  right  of 
testamentary  disposition  is  controlled  by  statute,  but  is  given 
generally  to  all  persons  of  full  (legal)  age,  being  of  sound  mind 
and  memory,  and  extends  to  all  species  of  propert_y  and  to 
every  right,  title  and  interest  therein.  Alienage  and  coverture, 
formerly  constituted  a  conr.non  law  or  statutory  disability,  but 
a  gradual  removal  of  restraints  on  alienation  has  virtually  or 
expressly  abolished  such  disability' in  the  United  States.  In- 
fants, and  persons  of  insufficient  mind  are  about  the  only 
persons  upon  whom  any  restrictions  are  now  placed.  The 
facts,  of  legal  age,  and  a  sound  and  disposing  mind,*  are 
matters  of  primary  investigation  and  proof  in  all  probates  of 

1  United  Statef?  v.   Fox,  94  U.  S.,      v.  Fox,  94  U.  S.  315. 

(4  Otto)  315;  Kerr  v.  Dougherty,  79  ^  Deford  v.   Deford,    36  Md.  168; 

N.  Y.  327.  James  t).  James,  4  Paige,  115;  Hay- 

2  Thus,  by  a  statute  of  New  York,       den  v.  Stoughton,  5  Pick.  528. 

a  devise  of  lands  in  that    state  can  H'o  be   of  sound   and   disposing 

only  be  made  to  natural  persons,  and  mind,  the  law  simply  requires  that 

to  such  corporations  as  are  created  the  testator  be  al)le  to  manage  his 

under  the  laws  of  the  State  and  are  own  affairs,  and  to  know  intelligently 

authorized  to  take  by  devise;  a  de-  what  disposition   he  is   making  of 

vise,  therefore,  of  lands  in  that  state  them;  Harvey  v.  SuUen's  heirs,  56 

to  the   government  of  the   United  Mo.  372. 
States  was  held  void:  United  States 


350  ADSTUACTS    OF    TITLE. 

wills,  and  the  questions  tlnis  presented  and  presumably  satis- 
factorily answered  at  the  outset,  are  not  attain  raised  during 
the  examination. 

§  8.  Construction  of  "Wills.  Upon  the  "ground  that  wills 
are  often  made  in  haste,  and  bj'^  inexperienced  persons,  a  de- 
vise is  not  construed  strictly  and  tecimically,  like  a  deed,  but 
liberally,  and  according  to  the  intent  of  the  testator,  and  such 
intent  may  be  gathered,  in  case  of  doubt," not  from  detached 
clauses,  but  from  the  whole  will,  so  that  everj'  word  may 
liave  its  effect,  if  possible.^  It  is  a  cardinal  rule,  however,  in 
the  construction  of  wills,  that  a  testator  is  always  presumed  to 
use  the  words  in  which  he  expresses  himself,  according  to  their 
strict  and  primary  acceptation,  unless  from  the  context  it  ap- 
pears that  he  has  used  thejti  in  a  different  sense;  in  which 
case  the  sense  in  which  he  thus  appears  to  have  used  them 
will  be  the  sense  in  which  they  are  to  be  construed,^  and  tech- 
nical words  are  presumed  to  be  used  in  their  legal  sense,  un- 
less there  is  a  plain  intent  to  the  contrary'.*  The  general  intent 
will  prevail  over  expressions  indicating  a  different  particular 
intent,*  though  every  expressed  particular  intent  must  be 
carried  out  when  it  can  be,^  and  when  a  will  is  susceptible  of 
a  two-fold  construction,  one  of  which  avoids  and  tlie  other 
upholds  it,  the  latter  must  be  adopted."  The  general  rule, 
liowever,  that  wills  are  to  be  construed  according  to  the  in- 
tention of  the  testator,  must  be  understood  as  the  intention 
of  the  testa!o'  as  expressed  in  the  w'ill;  and  this  must  be 
judged  of  exclusively,  by  the  words  of  the  instrument,  as 
applied  to  the  subject-matter  and  the  surrounding  circum- 
stances,'' and  not  from  extrinsic  matter  or  evidence  aliunde^ 

'Welch  V.  Hiise,  49  Cal.  507;  But-  *Bel]  v.  Humplrey,  8  W.  Va.  1; 

ler  V.  Huestis,  68  111.  594  ;  Lytle  v.  Parks  r.  Parks,  9  Paige,  107;  Schott's 

Beveridge.  58  N.  Y.  592  ;  Moran  ».  Estate.    78  Pa.  St.  40  ;  Watson  r. 

Dillehay,  8  Bush.  434.  Blackwood,  50  Miss.  15. 

2Lucet>.  Dunham,  69  N.  Y.  36;  ^  Bell   v.  Humphrey,  8  W.  Va.    1. 

Edwards  v.  Bibb,  43  Ala.  666  ;  Mead  « Mason  r.  Jones,  2  Barb.  229. 

r.  Jennings,  46  Mo.  91 ;  Feltman  v.  ''  Bell  r.  Humphrey,  8  W.  Va.  1  ; 

Butts,  8  Bush  (Ky.),  115.  Wheeler  v.  Hartshorn,  40  Wis.  83  ; 

''Butler    V.  H  lestis,  68  111.  594;  Blanchard  v.  Maynard,  103  111.  60. 

France's  Estate,  75  Pa.  St.  220  ;  De-  »  McAlister  v.  Butterfield,  31  Ind. 

Kay  V.  Irving,  5  Den.  646.  25  ;  Brownfield  v.   Wilson,   78  111. 


WILLS.  351 

Adj  constrnction  wliich  will  i-esult  in  partial  intestacy  is  to 
be  avoided,  unless  the  language  of  the  will  compels  it.' 

§  9.  Repugnancy.  It  is  a  well  established  rule,  that  the 
last  of  two  irreconcilable  provisions  in  a  will,  should  prevail," 
as  being  indicative  of  the  testator's  last  wish,''  but  where  the 
first  clause  disposes  of  all  testator's  property,  a  subserpient 
clause  providing  for  the  distribution  of  a  fund  which  would 
or  might  at  some  future  time  accrue  to  his  estate  would  not 
affect  the  antecedent  general  disposition.  In  such  case,  no 
residuum  being  contemplated,  there  could  be  no  residuary 
legatees.*  Under  the  application  of  the  rule  that  a  will  sliould 
be  so  construed  as  to  effectuate  the  intention  of  the  testator  as 
far  as  possible,  express  words  must  sometimes  yield  to  the 
^  otherwise  manifest  intention,  and  words  will  even  be  addled 
where  it  is  absolutely  necessary  to  avoid  absurdity  or  give  ef- 
fect to  such  manifest  intention.^ 

§  10.  Descent  or  Purchase.  It  is  a  rule  of  the  common 
law  that  where  devisees  under  a  will  would  take  the  same  es- 
tate in  quantity  and  quality  which  they  would  take  from  an 
intestate  ancestor  by  operation  of  law,  the  title  so  derived  is 
held  by  descent  and  not  by  j)urchase,  and  this  rule  still  obtains 
in  several  of  the  States.  "In  England,"  says  Eobinson,  J.,** 
"title  by  descent  was  favored  by  the  courts,  first,  because  land 

467;  Caldwell  v.  Caldwell,  7    Bush  Adie  v.  Cornwell,  3  Mon.  279. 

(Ky.),  515;  Sherwood  p.  Sherwood,  ^  But  this  rule  is  only  applied  to 

45  Wis.  357.  those  cases  where  the  two  provisions 

'Vernon  v.  Vernon,  53  N.  Y.  351;  are  totally  inconsistent  with    each 

Gate    V.  Cranor,  30  Ind.  292.     The  other,  and  where  the  real  intention 

state  of  the  law  at  the  time  of  the  of  the  testator   can    not    he    ascer- 

execution  of  a  will  often  aflTords  ma-  tained:  Kountree  v.  Talbot,  89   111. 

terial  assistance  in  arriving   at  the  246  ;  Covenhoven  v.  Shuler,  2  Paige, 

intention  of  the  testator,    when  it  122. 

would   otherwise  be    doubtful,  i»ut  *  Henning  r.  Varner,  34  Md.  102. 

the  rights  of  parties   taking   under  ^Wolsch  v.  Savings  Bank,  94  111. 

the  will  are  always  to  be  determined  191;  Wright  r.    L'>unn,   10  Wheat, 

by  the  law  as  it  existed  at  the  time  204  ;  Bartlett  v.  King,  12  Mass.  537; 

the  will   took   effect:    Carpenter  v.  Ruston  i\  Ruston,  2  Dall.  24 1. 

Browning,  98  111.  282.  «  Donnelly  r.  Turner,  15  Reporter, 

2  Fulton  tJ.  Hill,  41  Ga.  554;  Co-  717. 
vcnhoven  v.  Shuler,  2  Paige,   122 ; 


352  ABSTP.ACTS    OF    TITLE. 

in  the  hands  of  the  heir  at  law  by  descent  was  charf^eable  with 
the  payment  of  the  ancestor's  debts,  and  then  again  because 
it  favored  the  right  of  escheat  upon  the  failure  of  heirs  on 
the  part  of  the  ancestor  from  whom  the  lands  descended.  On 
the  other  hand,  land  acquired  by  purchase  was  not  liable  for 
debts,  and  uj^on  the  death  of  the  owner,  it  descended,  first  to 
the  heirs  on  the  paternal  side,  atid  upon  failure  of  such  heirs, 
then  to  the  heirs  on  the  part  of  the  mother.  Title  by  descent 
was  considered  the  -worthier  title,  and  where  the  will  gave  to 
a  devisee  the  same  estate  in  quantity  and  quality  which  he 
would  have  taken  as  heir  at  law,  he  was  adjudged  to  take  not 
under  the  will,  but  by  descent  or  operation  of  law." '  But  when 
one  devises  property  to  his  heirs  it  is  but  fair  to  presume  he 
intended  they  should  take  the  property  under  the  will,  and  in 
furtherance  of  this  principle  the  rule  first  stated  has  been  set 
aside  in  a  majority  of  eases  in  a  majority  of  the  American 
States,  and  the  devisees  in  such  cases  held  to  take  by  purchase 
and  not  by  descent.'^  Where,  however,  the  gifts  to  heirs  at 
law  are  made  to  them  simpliciter,  the  persons  to  take  and  the 
proportions  must  be  determined  by  the  statutes  of  descents 
and  distribution.' 

§  11.  Words  of  Grant.  As  in  deeds  so  in  wills,  there  must 
be  apt  words  of  grant  or  conveyance  or  words  indicative  of 
testamentary  intent,  but  any  form  of  expression  will  be  sufii- 
cient  to  pass  the  title,  provided  the  intent  is  manifest.  "  Give," 
"devise"  or  "bequeath"  are  the  words  commonly  in  use,  and 
all  or  either  will   be  sufficient   to  pass  real  estate,  though  the 

*  This  seems  to  have  been  the  view  nized. 

which  formerly  obtained  in  this  coun-  -^Gilpin   v.   Hollingsworth,  3  Md. 

try.     Mr.  Hilh'ard  says:    "  A  devise  190.     When  heirs  take  by  purchase 

is  void  if  made  to  tlie  heir  at  law,  they  do  not  take  as  heirs,  but  as  a 

and  if  it  gives  him  the  same  estate  class  of    persons  to  whom   by  that 

which  he  would  have  inherited.     In  means  the  testator  has  selected  to  de- 

such  case  the  heir  takes  by  descent,  vise  his  property,  and   as  they  take 

which  is  abetter  title  than  that  of  a  in  their  own  right,  the  distribution  is 

devisee;  because  an  adverse  claimant  to  be  made  ^er  capita  and  not  2^(?r 

may  enter  upon   the  latter,  but  not  stirpes:     Campbell    v.   Wiggins,    1 

upon  an  heir  ":  2  Hill.  Abridg.  514.  Rice's  Ch.  (S.  C.)  10. 

But  this  doctrine  is  not  now  recog-  ^  Richards  v.  Miller,  G2  111.  417. 


WILLS.  353 

teclmical  word  fur  this  purpose  in  a  properly  drawn  will  is 
"devise."'  Words  of  advice,  desire,  recommendation,  etc., 
are  not  ordinarily  sntlicient.^ 

§  12.  Words  of  Purchase  and  Limitation.  In  preparing  the 
synopsis  of  wills,  the  atteiirion  of  the  examiner  is  jiarticiilarly 
directed  to  what  are  known  as  the  words  of  "purchase  "  and 
"limitation."  These  are  tiie  words  used  in  connection  with 
gifts  to  specific  persons,  and  show,  as  in  case  of  deeds,  the 
nature  or  quality  ot  the  estate  conveyed,  and  are  usually 
the  words  "  heirs,"  "  heirs  of  the  body,"  "  issue,"  etc.,  and 
accordini^l}'  as  the  word  is  used  may  be  eitlier  a  word  of  pur- 
chase or  of  limitation.  Sufficient  of  the  context  must  be  o-iven 
to  show  the  sense  in  which  the  word  is  used  and  permit  a 
proper  construction.  The  word  "  issue  "  presents  the  largest 
number  of  questions  and  has  been  productive  of  an  almost 
innumerable  number  of  decisions.  As  a  word  of  limitation 
it  is  collective,  and  signifies  all  the  descendants  in  all  genera- 
tions; but  as  a  word  of  purchase  it  denotes  the  particular 
person  or  class  of  persons  to  take  under  the  devise.  The 
term  may  be  employed  in  eitlier  manner,  as  will  best  effect- 
uate the  testator's  intention,  and  is  the  most  flexible  word 
that  can  be  used.^  Courts  more  readily  interpret  the  word 
"issue"  as  the  synonym  for  "children,"  and  as  a  mere  de- 
scription of  the  person  or  persons  to  take,  than  they  do  the 
words  "heirs"  or  "heirs  of  the  body."*  The  usual  and 
ordinary  words  for  conveying  a  fee  simple,  in  wills  as  well  as 
in  deeds  are  "heirs,"  or  "heirs  and  assiirns  forever";  but 
a  devise   to  a  man  "forever,"   or  to  one   "and  his   assigns 

*  Acceptance  of  a  devise  where  it  parts  of  a  will  indicating  an  inten- 

is  beneficial  to  the  devisee  and  at-  tion  of  the  testator  to  dispose  of  his 

tended  with  no  charge  or  risk,  is  al-  whole  estate,  although  not  conclu- 

ways  presumed:     Brown  v.  Thorn-  sive  that  he  intends   to  pass  a  fee, 

dike,  15  Pick.  388.  always    favor     such     construction; 

2  Gilbert  v.  Chapin,  19  Conn.  .312;  Gever  v.  Wentzel,  68  Pa.  St.  84. 

Bohn  V.  Barrett's  Ex'r,  11  Reporter,  *  In  England  the  word  "issue  "  is 

839.  a  word  of  limitation  and  not  of  pur- 

^Timanus  r.  Dugan,  46  Md.  402;  chase,   unless  the  contrary   clearly 

Daniel  v.  Whartenby,  17  Wall.  639.  appears:  2  Jarm.  on  Wills,  328. 
Words  in  the  introductory  or  other 

23 


Soi 


ABSTRACTS    OF    TITLE. 


forever,"  or  to  one  in  "fee  simple,"  will  pass  an  estate  of  in- 
heritance to  the  devisee,  iiotv^athstandino-  the  omission  of  the 
leejal  words  of  inheritance,*  while  the  statute  in  a  majority  of 
the  States  would  cover  the  deficiency  and  give  to  tlie  devisee 
an  estate  in  fee,  none  other  heing  mentioned.'''  Questions, 
as  to  whether  a  devisee  takes  the  fee  or  a  lesser  estate,  occur 
most  frequently  where  the  testator  in  his  anxiety  to  make 
his  gift  effective  makes  several  bequests  in  the  alternative,  or 
limits  one  estate  upon  another,  and  are  usually  to  be  decided 
by  the  ap])lication  of  the  rnle  in  Shelly 's  case  as  modified  by 
local  law.  No  rule  of  general  application  can  be  formulated, 
and  from  a  review  of  the  reported  cases  on  this  subject  one 
can  well  appreciate  the  remark  of  a  learned  writer,  that,  "  the 
liberality  of  the  law  in  construing  wills  has  opened  the  flood- 
gates of  legal  chaos."  ^  It  would  seem,  however,  that  when- 
ever the  intention  of  the  testator  can  be  ascertained  it  will 
overcome  all  technical  rules,*  and  this  intention  turns,  not 
upon  the  quantity  of  interest  given  to  the  first  taker  or  per- 
son specified,  but  upon  the  nature  of  the  estate  intended  to  be 
given  to  the  "  heirs."* 


'Coke.  Litt.  9  b;  2  Black.  Com. 
108;  Meyers  v.  Anderson,  1  Strobh, 
Eq.  (S.  C.)  344;  Timaniis  v.  Dugan, 
46  Mel.  402. 

2Leiter  v.  Sheppard,  85  111.  243; 
McConnell  v.  Smith,  23  111.  617; 
Mirfitt  V.  Jessop,  94  111.  158.  The 
statute  very  grenerally  enacted 
throughout  the  Union  provides,  sub- 
stantially, that  every  estate  in  lands 
which  shall  be  granted,  conveyed  or 
devised,  although  other  words  here- 
tofore necessary  to  transfer  an  estate 
of  inheritance  be  not  added,  shall 
be  deemed  a  fee  simple  estate  of  in- 
heritance, if  a  less  est:<te  be  not 
limited  by  express  words,  or  do  not 
appear  to  have  been  granted,  con- 
veyed or  devised  by  construction  or 
operation  of  law. 

^O'Hara  on  Wills,  27,  and  s'^e 
Clark  r.  Booiman's  Ex'rs,  18  Wall. 


493. 

*  Goodrich  v.  Lambert,  10  Conn. 
448;  Baker  r.  Scott,  62  111.  90;  Butler 
V.  Heustis,  68  111.  601.  The  decisions 
of  the  local  courls  will  furnish  the 
best  guide  for  construing  estates 
under  wills,  as,  between  the  States, 
diametrically  opposed  views  will  fre- 
quently be  met  with  on  the  same 
admitted  facts. 

^  Baker  v.  Scott,  62  111.  90;  4  Kent 
Com.  221.  The  rule  in  Sheliy's  case, 
that  is,  the  technical  application  of 
the  words  "heir"  and  "heirs,"  is 
not  now  received  in  all  its  original 
vigor,  from  the  fact  that  it  often 
operates  to  defeat  the  testator's  in- 
tention, and  in  the  United  States  it 
is  regarded  of  no  especial  force  ex- 
cept as  an  aid  to  construction  and 
intention:  Blake  v.  fStone,  27  Vt. 
475. 


WILLS. 


iOO 


§  13.  The  Rule  in  Shelly's  Case.  Thono^h  entailed  estates 
are  no  longer  permitted  in  any  of  these  United  States,  the 
rule  in  Shelly's  case  still  has  a  modified  force  in  all,  and  is 
often  invoked  in  the  construction  of  devises  to  determine  the 
opei'ation  of  tlie  will  and  settle  conflicting  claims.  This  rule 
provides  that,  where  the  ancestor  takes  an  estate  of  freehold, 
and  in  the  same  gift  or  conveyance,  an  estate  is  limited,  eitiier 
mediately  or  immediately  to  his  heirs,  either  in  fee  or  in  tail, 
the  teini  "  heirs  "  is  a  word  of  limitation  and  not  of  purchase,^ 
and  when  applied  to  wills  is  ordinarily  confined  to  cases  in 
which  the  remainder  is  limited  in  terms  to  the  "  heirs  "  and 
not  to  "children  "  or  "  is^ue."^  When  invoked,  as  a  rule  it 
is  not  a  real  exception  to  the  fundamental  doctrine  that  the 
intention  of  the  testator  must  guide  in  interpreting  a  will; 
it  sacrifices  a  particular  intent  to  a  general  intent.  It  does 
not  interpret  a  will,  but  takes  effect  when  the  interu.'ctation 
has  been  ascertained.'' 

§  14.  Interpretation  of  particular  Words  and  Phrases. 
Though  the  testator  is  presumed  to  use  technical  words  ac- 


'  Baker  v.  Scolt,  G2  111.  90;  Estate 
of  Utz,  43  Cal.  200. 

2  Akers  v.  Akers,  23  N.  J.  Eq.  2G: 
Estate  of  Utz,  43  Cal.  200.  But  see, 
Haley  v.  Boston,  108  Mass.  576.  The 
woi'd  "  children  "  in  its  u.sual  sense  is 
a  word  of  purch:ise  and  not  of  limi- 
tation, and  is  always  to  be  so  regard- 
ed unless  the  testator  has  unmistak- 
ably used  it  otherwise:  Stump  v. 
Jordan,  54  Md.  G31 ;  2  Wash.  Real 
Prop.  (4th  ed.)  G03.  While  not  infre- 
quently the  word  "heirs,"  or  even 
the  words  "heirs  and  assigns  for- 
ever "  arc  held  not  to  operate  as 
words  of  limitation  because  correct- 
ed or  explained  by  words  which  fol- 
low and  which  are  irreconcilable 
with  the  notion  of  descent:  Shreve's 
Case,  43  Md.  399. 

^Yarnall's  Appeal,  70  Pcnn.  St. 
335.     Greater  latitude,  however,  is 


given  in  the  construction  of  wills 
than  in  that  of  deeds,  and  courts 
will  look  to  the  whole  will.  Thus, 
the  rule  as  stated  in  the  text,  while 
of  general  controlling  efficacy  in 
deeds,  where  it  may  always  be  safely 
applied,  is  subject  to  a  wide  latitude 
in  wills,  and  while  in  some  States  it 
may  be  rigidly  enforced,  in  the  ma- 
jority, when  explanatory  words  are 
found  in  the  will  showing  the  inten- 
tion of  the  testator  that  the  words 
"heirs  "  or  "  heirs  of  the  body"  are 
employed  to  show  that  such  persons 
shall  take  under  the  devise  as  a 
description  of  persons,  they  will  be 
treated  as  words  of  purchase  and  not 
of  limitation:  Butler  v.  Huestis,  68 
111.  594.  When  such  appears  to  be 
the  testator's  intention  "  lit-irs  "  have 
been  construed  to  mean  "children."' 


35G  ABSTRACTS    OF   TITLE. 

cording  to  tlicir  technical  meaning,'  this  can  hardly  be  as- 
serted as  a  rule,  or  should  it  be  so  asserted,  it  must  be  taken 
subject  to  that  other  all-powerful  rule  that  the  intention  of  the 
testator  must  prevail.^  The  construction  of  words  in  a  will  is 
much  less  technical  than  that  of  the  same  words  in  a  deed,  for 
though  in  deeds  effect  will  always  be  given  to  the  true  inten- 
tion of  the  parties,*  yet  the  words  employed  govern  such  in- 
tention, while  in  a  will  the  intention  governs  the  words.*  The 
use  of  the  word  "descend,"  does  not  operate  to  work  a  descent 
in  the  legal  strict  sense  of  the  term,  as  inheritance  is  through 
operation  of  law;  its  employment,  therefore,  unless  some 
other  meaning  is  apparent,  is  to  be  taken  as  indicating  the 
desire  of  the  testator  that  his  projjerty  shall  follow  the  same 
channel  into  which  the  law  would  direct  it.*  "Children"  is 
ordinarily  taken  in  its  primary  and  strict  signification,  and 
does  not  include  grandchildren,'^  unless  there  is  something  in 
the  contex*  to  show  that  the  testator  intended  to  include 
grandchildren,  or  unless  such  construction  is  necessary  to 
render  the  provisions  of  the  will  operative.'  "  Issue"  means 
heirs  of  the  body.*  "Heirs"  ordinarily  means  statutory 
heirs,  of  every  kind  and  degree,^  but  under  certain  circum- 
stances may  be  confined  to  children. ^°  There  are,  however,  no 
arbitrary  or  unbending  rules  in  the  construction  of  the  words 
of  a  will.  No  two  wills  are  in  all  respects  alike.  Where, 
indeed,  the  same  precise  form  of  expression  occurs  as  may 
have  been  the  subject  of  some  former  adjudication,  unaffected 
by  any  indication  of  a  different  intention  in  other  parts  of  the 

J  France's  Estate,  75  Penn.  St.  220.  Penn.  St.  94. 

2  Smyth  V.  Taylor,  21  111.  296;  Heu-  '  Feit  v.  Vanata,  21  N.  J  Eq.  84. 
ser  V.  Harris,  42  111.  425;  Meade  v.  The  words  "children  forever"  in  a 
Jennings,  46  Mo.  91.  devise,  when  construed  with  the  con- 

3  Peckham  v.  Haddock,  36  111.  3S;  text,  were  held  to  be  words  of  inher- 
Churchill  v.  Reamer,  8  Bush  (Ky.),  itance,  and  to  have  been  used  in  the 
256.  sense  of  heirs.    See  Moran  v.  Dille- 

*  Edwards  v.  Bibb,   43  Ala.  666;      hay,  8  Bush  (Ky.),  434. 
Brownfield  v.  Wilson,  78  111.  467.  *  Kleppner  v.  Laverty,  70  Penn. 

5  Dennett  v.  Dennett,  40  N.  H.  498.  St.  70. 

*  Hopson  V.  Commonwealth,  etc.,  '  Richards  «'.  Miller,  62  111.  417. 
7  Bush  (Ky.),  644:  Moffat  v.  Carrow,  i"  Butler  v.  Huestis,  68  111.  594. 
7  Paige,   328;   Gernet  v.  Lynn,  31 


WILLS.  357 

instrument,  the  courts,  with  a  view  to  certainty  and  stability 
of  titles,  will  follow  the  precedent.  Nevertheless,  the  cardi- 
nal canon  still  holds  good,  that  the  intention  of  the  testator 
of  each  will  separately  is  to  be  gathered  from  its  own  four 
corners.' 

§  15.  Words  which  pass  Real  Estate.  Sometimes  wills 
contain  no  specific  allusions  to  land,  or  partioilar  bequests 
nmy  be  niade  in  general  terms,  and  in  such  cases  grave  ques- 
tions of  constructio!!  arise  when  real  estate  is  claimed  under 
them.  The  liberality  of  courts  is  nowhere  more  manifest 
than  in  the  solution  of  these  questions.  The  words  "  prop- 
erty" and  "  estate"  when  used  in  a  general  sense,  are  always 
held  sufficient  to  embrace  all  the  testator's  property,  real  as  well 
as  personal.^  The  word  "  effects,"  though  savoring  strongly  of 
personalt}',  may,  when  the  context  clearly  shows  the*intention, 
as  when  used  in  connection  with  the  word  "real,"*  be  suffi- 
cient to  ])ass  land.*  The  question  will  occur  most  frequently 
in  constructions  of  the  bequest  of  the  residuum,  and  courts 
seem  inclined  to  favor  any  construction  which  will  avoid  even 
a  partial  intestacy.* 

§  16.  Limitations  and  Remainders.  Xine  tenths  of  all  the 
litigation  concerning  testamentary  conveyances  is  occasioned 
by  questions  relative  to  the  construction  of  limitations  and 
remainders.  The  subject  has  been  incidentally  discussed  in 
several  of  the  preceding  paragraphs,  and  in  addition  to  what 
has  been  there  said  little  can  be  stated  without  entering  into 
the  matter  at  greater  length  than  tlie  exigencies  of  this  arti- 
cle will  permit.  Local  statutes  are  very  eftective  in  the  set- 
tlement of  such  questions,  so  far  as  the  validity  of  the  re- 
mainder limited  is  concerned,  as  well  as  the  persons  who  take, 
when  ])articular  words   are  accorded    a    statutory'  definition. 

1  Provenchere's  Appeal,  67  Penn.      Jones,  8  R.  I.  526. 

St.  463.  'As,  "  all  my  effects,  real  and  per- 

2  Voixg  V.  CI  ark,  1  N .  H .  1 63 ;  Jack-      sonal . " 

son  V.  Housel,  17  John.s.  281;  Whea-  *2  Redf.  on  Wills,  *30S,  and  cases 

tonr.  Andress,  23  Wend.  4-")2;  Hunt  cited. 

V.  Hunt,  4   Gray  (Mass.),  190;  Korn  ''  Vernon  r.  Vernon,  53  N.  Y.  351; 

V.   Cutler,  26    Conn.  4;    Monroe   c.  Cate  i'.  Cranor,  30  lud.  292. 


358  ABSTRACTS   OF    TITLE. 

All  words  of  purchase,  as  "  cliildren," '"  issue,"  etc.,  creato 
remainders  according  to  their  import,  while  "heirs"  when 
construed  as  a  word  of  purchase,  designates  not  only  the  per- 
sons who  are  to  lake,  but  also  the  manner  and  pro])ortiuns  in 
which  they  take.^  The  utmost  liberality  is  displayed  in  the 
reported  decisions  construing  remainders,  and  the  circum- 
stance that  the  first  taker  has  it  in  his  power  to  dispose  of 
the  whole  estate  and  thus  defeat  a  limitation  over,  is  not  of 
itself  conclusive  that  the  expectant  estate  is  void,  when  a 
contrary  intention  appears  from  the  will.^ 

The  intention  of  the  testator  must,  in  all  cases,  be  carried 
out  when  such  intention  can  be  ascertained  from  the  will,  and 
in  no  case  can  the  intention  thus  ascertained  be  defeated  by 
a  technical  construction  of  the  language  employed/  Limita- 
tions to  survivors  have  produced  a  vast  amount  of  litigation, 
but  the  questions  arising  under  such  a  devise  niay  now  be 
considered  as  well  settled,  and  the  general  rule  seems  to  be 
that  the  word  "survivor"  is  to  be  f-^'ken  in  its  natural  and 
literal  import,  unless  the  context  pi;  nl  indicates  a  difierent 
intention,  and  should  not  be  construed  a:5 equivalent  to  the  word 
"  other,"  ^  Where  the  courts  have  given  the  word  "  survivor  " 
the  force  of  "  other,"  it  has  been  done  to  avoid  some  conse- 
quence which  it  was  very  certain  the  testator  could  not  have 
intended.® 

§  17.  Devise  to  a  Class.  It  is  a  rule  of  the  common  law 
that  a  devise  to  a  class  of  persons  takes  effect  in  favor  of  those 
who  constitute  the  class  at'the  death  of  the  testator,  but  this 
rule  has  been  greatly  modified  in  nearly  every  State,  so  that 

'  Beacroft  v.  Strawn,  67  111.  28.  ^  This  is  the  construction   which 

'^Rand  v.  Sanger,  115  Mass.  124.  now  obtains  both  in  England  and 

The  rules  of   descent  in  such    case  the  United  Stales:  2  Jar.  on  Wills, 

are  presumed  to  be  the    intended  648  ;  2  Redf.  on  Wills,  *372. 

guide.  ^  Leeming    v.    Sherratt,    2    Hare 

3 Terry  r.  Wiggins,  2  Lans.(N.  Y.)  (Eng.),  14;  2  Jar.  on  Wills,    658; 

272;    Burleigh  v.  Clough,  52  N.  H.  Consult  Passmore's  Appeal,  23  Pa. 

267.     Compare  Clark  v-  Tennison,  33  St.  381  ;  Moore  v.  Lyons,  25  Wend. 

Md.85.  119;    Martin  r.  Kirby,    11    Gratt. 

*  Terry  v.  Wiggins,  2  Lans.  (N.  (Va.)  67. 
Y.)  272. 


WILLS.  359 

when  an  estate  is  devised  to  tlie  children  or  other  rehatives  of 
the  testator,  the  lineal  descendants  of  a  devisee  who  dies  be- 
fore the  testator  take  the  share  of  their  ancestor.' 

§  18.  Gift  of  the  Income  of  Realty.  It  is  a  well-settled 
rule  of  hiw  that  a  i;-ift  of  the  income  of  real  estate  or  of  the 
"rents  and  profits,"  or  ''benefits,"  is  a  i^ift  of  the  real  estate 
itself  Those  to  whom  the  testator  has  given  the  income  for 
life  will  take  a  life  estate,  and  those  to  whom  he  has  given 
the  perpetual  income  will  take  a  fee-simple  estate.''^  Such 
gift,  however,  to  accom])lish  this  purpose  must  be  without 
qualification  or  limitation,  and  in  order  to  determine  whether 
there  is  such  qualification  or  limitation,  recourse  must  be  had 
to  the  whole  will,  with  the  view  of  ascertaining  the  sense  in 
which  the  terms  were  used  by  the  testator.  When  it  a])pears 
from  other  parts  of  the  will  that  the  fee  is  otherwise  disposed 
of,  such  terms  can  not  be  held  to  carry  the  fee.^ 

§  19.  Devise  with  Power  of  Disposition.  Where  an  es- 
tate is  given  to  a  person  generally  or  indefinitely,  with  a 
power  of  disposition,  it  carries  the  fee,  unless  the  testator 
gives  to  tlie  first  taker  an  estate  for  life  only,  and  annexes  a 
power  of  disposition  of  the  reversion.  In  that  cnse,  the  ex- 
press limitation  for  life  will  control  the  operation  of  the 
power,  and  prevent  it  from  enlarging  the  estate  to  a  fee.  This 
is  the  doctrine  laid  down  by  Kent,*  and  the  English  writers,® 
and  substantially  followed  by  later  American  decisions.®  The 
question  often  arises  where  life  estates  are  created  by  implica- 
tion, as  where  the  testator  devises  property  generally,  without 

Mamison   v.    Hay,   46  Mo.     546;  *  Cruise  Difi.  tit.  §.'J8,  c.  IH,  §5; 

Smiley  v.  Bailey,  59  Barb.  HO.  Jar.  on  Wills  (  Bi/elow  ),  873.*  ' 

2  IleoJ  i\  Reed,  9  Mass.  o72  ;  But-  *^  Rani.sdell  r.  Kamsaell,  21  Me, 
terfield  t\  Haskins,  33  Me.  392  ;  Earl  2S8;  Jones  r.  Baeon,  63  Me.  34; 
V.  Rowe,  35  Me.  414;  Collier  v.  Smith  r.  Bell.  6  Pet.  68;  Gifford  «. 
Grimsey,  36  Ohio  St.  17;  Drusadow  Choat*',  100  Mass.  346;  Burleigh  ». 
V.  Wikie,  63  Pa.  St.  170  ;  Morgan  v.  Cough,  52  N.  H.  267;  Jackson  v. 
Pope,  7  Coldw.  (Tenn.)  541.  Kobins,  16  Johns.  537;  Ayer  r.  Ayer, 

3  Collier  t?.  Gr.msey,  36  Ohio  St.  128  Mass.  575;  Downey  v.  Borden, 
17;  Morgan  v.  Pope,  7  Coldw.  36  N.  J.  L.  460;  Beukert  r.  Jacoby, 
(Tenn.)  541.  36  Iowa,  273. 

*  4  Kent  Com.  535.* 


3  GO  ABSTRACTS    OF   TITLE 

a  specification  of  the  qnantit}'  of  interest,  and  adds  some 
power  of  disposition  with  a  remainder  or  limitation  over. 
Tn  snch  case,  where  an  absolute  power  of  disposition  is  an- 
nexed to  the  gift,  a  limitation  over  is  of  no  effect,  but  where 
the  ■|)Ower  of  disposal  is  not  an  absolute  power,  but  a  quali- 
fied one,  conditioned  upon  some  certain  event  or  purpose,  and 
there  is  a  remainder  or  devise  over,  the  words  last  used  re- 
strict and  limit  the  words  first  used,  and  reduce  what  was  ap- 
parently an  estate  in  fee  to  an  estate  for  life  oidv.^  Where 
there  is  a  devise  for  life,  in  express  terms,  a  power  of  disposal 
antiexed  can  not  enlarge  it  to  a  fee.^  To  satisfy  the  doubts 
that  must  naturally  arise  in  construing  devises  of  this  charac- 
ter, it  is  necessary  that  the  entire  clause  relating  to  the  devise 
be  substantially,  and  in  many  cases  literally,  set  ibrth,  and  as 
the  construction  will  often  be  influenced  by  other  parts  of  the 
instrument,  a  corresponding  treatment  will  be  required  of  all 
such  portions  as  directly  or  indirectly  concern  the  particular 
devise  under  consideration.  A  conveyance  by  a  devisee  for 
life,  but  with  an  absolute  power  of  disposal  of  the  reversion, 
will  vest  in  the  grantee  of  such  devisee  an  estate  in  fee,*  while 
in  case  the  power  has  not  been  exercised,  the  land,  on  the 
death  of  such  devisee,  goes  to  the  heirs  of  the  devisor.*  An 
important  distinction  will,  however,  be  observed  between  an 
absolute  and  unconditional  power  of  disposal  in  the  discretion 
of  the  devisee  and  a  power  restricting  the  disposition  both  as 
to  time  and  manner.  The  devise  of  an  estate  for  life,  with 
authority  in  the  devisee  to  dispose  of  same  by  last  will  and 
testament,   does  not  convey  absolute  ownership,^  nor  would 

1  Stuart,  V.  Walker,  11  Reporter,  Welsch  p.  Savings  Bank,  94  111.  191; 
533;  Merrill  v.  Emery,  10  Pick.  512;  Jassoy  r.  White,  2:*  Ga.  295;  Downey 
Jar.  on  Wills  (Bigelow),  879.*  A  v.  Borden.  36  N.  J.  L.  460.  Aditfer- 
devise  with  power  of  disposition,  al-  ent  rule  prevails  in  some  States.  See 
though  providing  for  an  ultimate  re-  Hazel  v.  Hagan,  47  Mo.  277. 
mainder  of  what  remains  undisposed  ^  Funk  v.  Eggleston,  92  111.515; 
of  at  the  death  of  the  first  taker,  Hazel  v.  Hagan,  47  Mo.  277;  Levy 
■will  vest  a  fee,  or  a  right  to  convey  v.  Gritfiths,  65  N.  C.  236;  Lyon  v. 
in  fee:  Lj'on  v.   Marsh,    116  Mass.  Marsh,  116  Mass.  232. 

232.  *  Fairman  v.  Beal,  14  111.  244. 

2  Ward  V.  Amory,  4  Curtis,  425;  ^  Bryant,  v.  Christian,  58  Mo.  98; 
Jar.    on    Wills    ( Bigelow ),     873;* 


WILLS. 


3G1 


the  furtlier  fact  that  the  will  devising  same  chari>;ed  tlie  ]>ay- 
meiit  of  the  debts  on  the  devisee  be  sufficient  to  enlarge  the 
life  estate  to  a  fee  sinijile.^  The  right  of  testamentary  dispo- 
sition is  a  mere  power,  and  though  the  authorities  are  not 
altogether  harmonious  as  to  tlie  right  of  the  devisee  to  exer- 
cise such  power  by  deed,  it  would  yet  seem  tiuit  a  warranty 
deed  in  ice  simple,  executed  by  the  devisee,  whicli  nuade  no 
reference  to  the  will  by  which  the  power  of  disposition  was 
given,  and  contained  no  evidence  of  an  intention  to  execute 
the  ])Ower,  conveys  only  the  life  estate  of  the  devisee.''  The 
question  seems  to  turn  upon  tiie  fact  of  intention  in  the  donee 
of  the  power  to  execute  it,  and  when  there  are  co-existing  in- 
terests, one  within  and  the  other  without  the  power,  it  would 
seem  that  the  intention  to  execute  the  power,  whetiier  by  deed 
or  will,  must  be  apparent  and  clear,  but  that  intention,  how- 
ever manifested,  whether  directly  or  indirectly,  positively  or 
by  just  implication,  will,  when  established,  render  a  convey- 
ance by  the  devisee  valid  and  operative.^  No  statj  of  facts, 
in  an  examination  of  title,  presents  graver  qnestiuns,  or  ques- 
tions more  difficult  of  solution. 


and  see  Terry  v.  Wiggins,  2  Lans. 
(N.  y.)272. 

^  Dunning  v.  Van  Dusen,  47  Ind. 
423;  Jassey  v.  White,  28  Ga.  295; 
Jar.  on  Wills  (  Bigelow),*  873. 

2  Dunning  v.  Van  Dusen,  47  Ind. 
423;  Funk  v.  Eggleston,  92  III.  51-5. 
It  may  be  laid  down  as  a  general 
rule,  that  in  all  cases  where  by  the 
terms  of  the  will  there  has  been  an 
express  limitation  of  an  estate  to  the 
first  taker,  for  Rfo,  and  a  limitation 
over,  any  general  expressions  appar- 
ently giving  the  tenant  for  life  an 
unlimited  power  over  the  estate,  but 
which  do  not  in  express  terms  do  so, 
must  be  regarded  as  referring  to  the 
life  interest  only,  and,  therefore,  as 
limited  by  such  interest:  Welsch  v. 
BcUville  Savgs.  Bank,  94  111.  191. 

8  Funk  V.  Eggleston,  92  111.  515. 


In  this  case,  the  subject  of  a  devise 
for  life  with  power  of  disposition,  is 
very  exhaustively  treated  in  a  learned 
and  abl(!  opinion  by  Baker,  J.  'J'he 
fundamental  principle  deducible 
fro)n  the  English  decisions  is  that 
there  should  be  a  certain  ascertain- 
ment of  the  intention  of  the  donee 
of  the  power  to  act  under  the  power. 
Three  classes  of  cases  arose  in  which 
it  was  demonstrated  to  an  absolute 
moral  certainty  there  was  an  inten- 
tion to  execute  the  power,  and  these 
wcn^:  1,  when  there  was  a  reference 
to  the  power;  or  2.  to  he  subject  or 
property  covered  by  the  power;  or  3, 
wlion  the  instrument  would  be  inop- 
erative without  the  aid  of  the  power. 
The  cases  ranging  themselves  in  one 
or  the  other  of  these  three  clas.ses,  it 
was  judicially  announced  in  some  of 


6b2  ABSTRACTS   OF   TITLE. 

§  20.  Indeterminate  Devise.  Owing  to  the  lil)eral  con- 
struction now  accorded  to  wills  as  well  as  sweepini^  statutory 
enactments  relative  to  the  limitation  of  estates,  fewer  ques- 
tions will  arise  in  rei^ard  to  the  quantity  or  duration  of  estates 
than  formerly.  AVills  drawn  by  the  testator,  or  holoi^raphic 
wills,  frequently  fail  to  express  clearly  such  testator's  inten- 
tions, and  as  the)'  are  copied  from  the  ever  ready  "form  booh  " 
and  adapted  to  his  wants,  they  not  infrequently  fail  to  ex- 
pressly define  the  nature  or  extent  of  the  estate  he  seeks  to 
C()nve3%  A  devise  indeterminate  in  its  terms  and  without 
words  of  limitation,  which,  standin::;  alone  and  unaided  by- 
statute,  would  create  only  an  estate  for  life,  will  be  enlarged 
to  a  fee  by  the  imposition  of  a  charge  upon  the  person  of  the 
devisee,  or  on  the  quantum  of  the  interest  devised  to  him;^ 
but  not  if  the  premises  are  merely  devised  subject  to  a  charge.^ 
Where  the  charge  is  on  the  estate,  and  there  are  no  words  of 
limitation,  the  devisee  takes  an  estate  for  life  onlj-,^  but  where 


the  cases  that  there  could  be  no  exe- 
cution of  a  power  un  ess  the  case 
fell  in  one  or  the  other  of  these  three 
classes.  See  Sir  Edward  Clere's 
case,  6  Coke,  17;  Standen  v.  Standen, 
2  Ves.  Jr.  589.  But  m  furtherance 
of  the  general  rule  that  the  inten- 
tion of  the  testator  (in  case  of  dis- 
position by  will)  is  the  pole  star  to 
guide  in  the  interpretation,  the 
English  rule,  which  requires  the  ex- 
istence of  one  of  the  three  elements 
above  enumerated,  is  made  alto- 
gether subordinate  and  secondary  in 
its  character,  and  if  circumstances 
arise  that  indicate  clearly  the  inten- 
tion of  the  donee  to  work  by  the 
power,  the  artificial  rule,  predicated 
upon  former  experience,  must  give 
way,  and  the  primary  and  funda- 
mental rule,  which  requires  only 
that  the  intention  must  be  clear  and 
manifest,  will  prevail.  "The  main 
point,"  says  Mr.  Justice  Story 
(Blagge  V.  Miles,  1  Story,  427),   "  is 


to  arrive  at  the  intention  and  object 
of  the  donee  of  the  power  in  the  in- 
strument of  execution,  and  that  be- 
ing once  ascertained,  effect  is  given 
to  it  accordingly.  If  the  donee  in- 
tends to  execute,  and  the  mode  be 
in  other  respects  unexceptionable, 
that  intention,  however  manifested, 
will  make  the  execution  valid  and 
operative."  But  the  intention  must 
be  clear  and  apparent,  so  that  the 
transaction  is  not  fairly  susceptible 
of  any  other  interpretation.  If  it  be 
doubtful,  under  all  the  circumstan- 
ces, then  the  doubt  will  prevent  it 
from  being  deemed  an  execution  of 
the  power:  Blagge  v.  Miles,  1  Story, 
427;  Dunning  r.  Van  Dusen,  47  Ind. 
423. 

1  Tracy  v.  Kilborn,  3  Cush.  (Mass.) 
557;  Baker  v.  Bridge,  12  Pick.  27; 
Barhejdt  v.  Barheydt,  20  Wend. 
676. 

^Hawkins  on  "Wills,  134. 

8  Fox  V.  Phelps,  17  Wend.  393.    By 


WILLS.  363 

the  cliar^^e  is  on  the  person  of  the  devisee  in  respect  of  the 
estate  in  his  iiands,  lie  takes  a  fee  b}-  implication/  If  the 
charge  be  on  the  person  of  the  devisee,  the  amount  is  unim- 
portant, if  the  sum  is  to  be  paid  absolutely."  But  this,  it  will 
be  understood,  applies  only  to  indefinite  devises.  Where  the 
estate  is  <;iven  for  life  in  express  terms,  and  some  other  de- 
terminate estate  is  expressly  fj^iven  or  arises  by  necessary  im- 
plication from  the  languaice  of  the  devise  over,  the  rule  is 
inoperative  to  enlarge  such  an  estate  to  a  fee.' 

§  21.  Devise  on  Condition  Precedent.  This  frequently  oc- 
curs where  land  is  given  on  condition  that  the  devisee  pay 
certain  legacies,  or  perform  certain  acts,  etc.,  and  perform- 
ance of  the  conditions  are  essential  to  the  vesting  of  the  es- 
tate.* Where  the  conditions  are  limited  as  to  time,  and  are 
not  performed  within  that  time  the  devise  does  not  take  ef- 
fect,^ but  becomes  inoperative  and  void.  A  devise  uj^on  con- 
dition, therefore,  always  raises  an  inquiry  in  jxiis  upon  the 
examination  of  a  title  proffered  by  the  devisee,  and  before 
passing  or  accepting  same,  a  requisition  should  be  made  for 
further  information  relative  to  the  due  performance  of  the 
condition. 

§  22.  Conditional  Devise — Marriage.  Estates  for  life  are 
frequently  devised  to  surviving  husbands  or  wives,  subject  to 
a  defeasance  in  the  event  of  a  second  marriage.  The  law  is  well 
settled,  both  in  England  and  this  countrj',  that  conditions  in 
general  restraint  of  marriage,  whether  of  man  or  woman,  as 
a  general  rule,  are  regarded   in  law  as  being  against  public 

force  of  the  statute  a  general  devise  20  Weiul.  576  ;  Jucks-on  v.   Hai-ris, 

will  pass  all  the  testator's  estate,  in-  12  "Wend.  83. 

cludiner  the  fee,  unless   a   contrary  *2  Jarm.  on  Wills,  173  ;  Groves  v. 

intent  fairly  appears.  Cox,  40  N.  J.  L.  40. 

Uackson  t>.  Bull,  10  Johns.   148;  *Xeviusr.  Gourley,  95  111.  206.     A 

Funk    V.  Eggleston,    92    111.    515  ;  court  of  chancery  will  never  vest  an 

Merritt  v.  Brantly,  8  Fla.  226;  Cook  estate  when,  by  reason  of  a  condi- 

r.  Holmes,  11  Mass.   528;  Wait  v.  tion  precedent,  it  will  not    vest   in 

Belding,  24  Pick.  129.  law:  Id. 

^Collier'sCase,  6Rop.  16;  2.Jarm.  ^  Nevius  r.  Gourley.  97  111.  356; 

on  Wills.  171  ;  Jackson  v.  Merrill,  6  (2d  hearing)  Den  r.  Messenger,  33 

Johns.  186;  Barheydt  v.  Barheydt,  N.  J.  L.  499. 


364  ABSTRACTS   OF   TITLE. 

policy  and  therefore  void.  "But  this  rule,"  sa3's  Alvey,  J., 
"  has  never  been  considered  as  extending  to  special  restraints, 
such  as  against  marriage  with  a  particular  person,  or  before 
attaining  a  certain  reasonable  age,  or  without  consent.  Nor 
lias  it  ever  been  extended  to  the  case  of  a  second  marriage  of 
a  woman;  but  in  all  such  cases  the  special  restraint  b}' condi- 
tion has  been  allowed  to  take  effect,  and  the  devise  over  held 
good  on  breach  of  the  coiiditi''>n.  A  condition,  therefore, 
that  a  widow  shall  not  marry,  is  by  all  the  authorities  held 
not  to  be  unlawful."^  In  the  cases,  observes  the  same  author- 
ity, a  distinction  is  taken  between  those  where  the  restraint  is 
made  to  operate  as  a  condition  precedent,  and  those  where  it 
is  expressed  to  take  effect  as  a  condition  subsequent,  and  the 
decisions  have  generally  been  made  to  turn  upon  the  question, 
whether  there  be  a  gift  or  devise  over  or  not.  But  if  the  de- 
vise be  to  a  person  until  he  or  she  shall  marry,  and  upon  such 
marriage  then  over,  this  is  a  good  limitation  as  distinguished 
from  condition;  as  in  such  case  there  is  nothing  to  carry  the 
interest  beyond  the  m.arriage.  There  can  be  no  doubt,  there- 
fore, that  marriage  may  be  made  the  ground  of  a  limitation 
ceasing  or  commencing;  and  this,  whether  the  devisee  be  man 
or  woman,  or  other  than  husband  and  wife,^ 

§  23.  Contingent  Remainders.  Under  devises  similar  to 
those  mentioned  in  the  preceding  paragraph  many  questions 
will  arise  relative  to  the  devise  over,  which,  according  as  the 
phraseology  used,  will  be  either  a  vested  or  contingent  re- 
mainder. These  questions  are  of  far  greater  importance  than 
those  discussed  in  the  last  paragraph,  for  the  reason,  that  the 
former  contemplate  only  an  estate  of  limited  duration,  whereas 
the  latter  relate  to  the  fee.  The  examiner  should,  therefore, 
exercise  the  greatest  care  in  transcribing  all  devises  of  this 
character,  and  for  greater  certainty  it  is  recommended  that 
they  be  presented  with  little  or  no  abbreviation.  The  essence 
of  the  contingent  remainder  is,  that  it  is  limited  to  take  effect 
on  an  event  or  condition  that  may  never  happen  or  be  per- 

^Bostick».  Blades,    15   Reporter,  '  Bostick  v.  Blades,    15  Reporter, 

399;  2  Powell  on  Devises,  28;3;  Clark  899;  Arthurs.  Cole,  56  Md.  100; 
V.  Tcuuison,  33  Md.  85.  Brown  r.  Brown,  41  N.  Y.  507. 


WILLS. 


3G5 


formed,  or  wlilcli  ma_y>  not  happen  or  be  performed  until 
after  the  determination' of  the  prjceding  particular  estate.* 
Thus,  where  a  devise  over  ojierates  at  the  death  or  marri;i<^c 
of  the  first  devisee  to  such  of  testator's  children  as  shall  then 
belivino^,  this  would  give  a  contingent  remainder  to  such  of 
the  children  living  when  such  contingency  of  death  or  mar- 
riage happened.  The  children  of  such  testator  who  may  have 
died  after  the  testator  and  prior  to  the  happening  of  the  con- 
tingencj  would  take  no  estate,  nor  would  their  heirs,^  and 
the  fact  that  the  words  "  to  them,  their  heirs,"  etc.,  followed 
the  mention  of  the  children  would  not  affect  the  result  stated, 
for  such  words  do  not  describe  the  devises  but  tlie  (|uaTitity  of 
their  estate,  and  merely  show  the  estate  taken  by  the  ])revious 
words  to  be  a  fee.^ 

§  24.  Contingent  Reversion.  A  contingent  reversion  may 
be  created  either  by  deed  or  will,  but  more  frequently  occurs 
under  the  latter.  It  is  a  possibility  of  reinvestnre  in  the 
grantor  or  his  heii'S,  and  occurs  where  a  conveyance  is  made  to 
one  for  life  or  years  with  a  contingent  remainder.  Tims,  in 
case  of  a  devise  to  an  unmarried  woman,  and  to  the  "heirs  of 
her  body  "  or  "  childi-en  ";  here  the  devisee  named  would  take 
a  life  estate  only,  while  a  contingent  remainder  is  created  in 
favor  of  such  heirs,  who,  when  born,  would  take  the  fee.  The 
will,  in  such  case,  effectually  divests  the  heirs  of  tlie  testator 
of  all  estate  but  a  contingent  reversion,  dependent  upon  the 
devisee's  dying  without  issue.* 

§  25.  Devise  to  Married  Woman.  In  a  former  chapter^ 
the  subject  of  conveyances  to  married  women  was  quite  fully 
discussed  and  the  general  principles  there  laid  down  will  ap]ily 
with  equal  force  to  a  devise  by  will.     The  general  rule  of  con- 


1  Bou.  Law  Diet.  4^.'). 

2  01ney  v.  Hall,  21  Pick.  311;  Em- 
mison  v.  Whitelsey,  55  Mo.  254. 

^Thompson  v.  Ludington,  104 
Mass.  193. 

*Frazor  v.  Siipofvisnrs  Peoria  Co., 
74  Til.  282;  2  i?l.  Com.  164;  Blair?;. 
Vanblnrcnni,  71  111.290.  This  re- 
versionary interest  may  itseU  be  the 


subject  of  devise:  Austin  r.  Cam- 
bridf^eport,  21  Pick.  215;  and  will 
pass  under  a  residuai-y  clause:  Steel 
r.  Cook,  1  Met.  281 ;  and  the  rijjht  to 
same  may  be  asserted  by  the  heirs  of 
such  residuary  devisee  after  his  death: 
Ciapp  r.  Stouj^hton.  10  Pick.  4Q2. 
=^  See  Chap.  XVJ.  §  1,  2. 


V 

I 

BQQ  abstracts    of   TITliE. 

struction,  in  tlie  absence  of  statntory  pi-'wisions  to  the  contrary 
is,  that  in  order  to  exclude  the  marit;^  rights  of  tlie  liusband 
from  attaching  to  property  coming  to  tlie  wife  daring  cover- 
ture, or  belonging  to  her  at  the  time  of  marriage,  an  intention 
on  the  part  of  the  testator  to  vest  in  the  wife  a  separate  estate 
ought  to  appear  from  the  terms  or  provisions  of  the  will  so 
clearly  as  to  be  beyond  the  reach  of  reasonable  controvers_y.' 
This  is  ordinarily  acconiplislied  by  the  insertion  of  technical 
words,  as  "sole  and  separate  use,"  or  other  words  of  similar 
import,  while  the  same  end  may  be  attained  by  provisions 
excluding  the  marital  riglits  of  the  husband,  or  by  giving  to 
the  wife  powers  concerning  the  estate  inconsistent  with  the 
disabilities  of  coverture.'^ 

§  26.  Devises  to  Executors  in  Trust.  It  is  a  rule  in 
equity,  that  the  language  employed  in  devises  must  be  such 
as  to  show  that  the  object  is  certain  and  well  defined,  and 
that  the  beneficiaries  be  either  named,  or  capable  of  easy 
ascertainment  within  the  rules  of  law  which  are  applicable 
to  such  cases:  and  further,  that  the  trusts  be  of  such  a  nature 
that  the  court  can  direct  their  execution;  failing  in  this  the 
property  will  fall  into  the  residue  of  the  estate.'  Devises  in 
trust  are  frequently  made  to  executors,  the  object  being 
usually  to  promote  some  educational,  charitable  or  religious 
purpose,  the  beneficiary  being  an  institution  devoted  to 
the  furtherance  of  those  objects,  though  it  is  not  uncom- 
mon to  make  beneficial  devises  to  individuals  in  the  same 
manner.  It  is  usual,  though  not  necessary,  to  specifically 
name  or  describe  the  intended  beneficiaries,  and  numer- 
ous authorities  sustain  devises  to  executors  or  trustees  which 
confer  upon  them  authority  to  divide  the  same  amoiig  such 
persons  as  the}'  may  select  from  certain  classes  which  are 
designated,  and  among  such  children  or  relatives,  who  are 
intended  to  be  provided  for,  wliom  they  may  deem  proper.* 

'Schonler  Dom.  Rel.  (2d  ed.)  189;  Powell  on  Devises,  418;    Danin<r  r. 

2  Perry   on  Trusts,  §  647;    Hill  on  Rogers,  22  AVend.  494;  2  Story  Eq. 

Trustees,  611.  Jnr.    §  979;   Wheeler  v.    Smith,    9 

2  Vail  V.  Vail,  49  Conn.  —  How.  (U.  S.)55. 

s  Holmes  v.  Mead,    52  N,  Y.  332;  *  Power  v.  Cassidy,  79  N.  Y.  602; 


WILLS.  367 

"Whero  the  device  is  too  indefiinte  to  give  certainty,  or  is  sncli 
a  trust  iliat  tlic  court  can  not  execute  it,  resort  is  usually  had 
to  a  court  of  chancery  for  a  construction  of  the  will,  and 
wliere,  as  a  result,  the  devised  property  falls  hack  into  the 
residuum,  sucli  proceedings  become  a  necessary  link  in  the 
chain  of  the  title  to  such  particuLar  propert}'.  A  devise  in 
trust  for  such  object  of  benevolence  and  liberality  as  the 
trustee,  in  his  discretion,  shall  approve,  would  have  the  eifect 
last  mentioned.'  So,  al?o,  would  a  power  of  appointment  to 
one  to  give  or  devise  property  "  among  such  benevolent  relig- 
ious, or  charitable  institutions  as  he  ma}'  think  proper,'" 
being  vague  and  indefinite.  A  power  of  disposition,  to  such 
members  of  a  specified  branch  of  a  family  as  the  trustee 
miglit  consider  most  deserving,  is  void,  for  the  same  reason.^ 
A  direction  to  give  a  fund  in  "  j)rivate  charity  "  is  too  indefi- 
nite,* or  to  give  what  they  might  choose,^  but  when  the  bene- 
ficiaries are  capable  of  identification,  although  not  named, 
the  trust  will  Ije  valid,  and  a  testator  may  commit  to  comjic- 
tent  persons  the  ])o\ver  to  designate  who  of  certain  persons 
shall  participate  in  a  specified  portion  of  his  estate,  and  in 
what  proportions  the  property  shall  be  divided.® 

§  27.  Bequest  to  Devisee  by  Description.  The  observa- 
tions of  the  last  section  are  in  a  measure  a])plicable  to  direct 
bequests,  for  a  devisee,  whether  a  corporation  or  a  natural 
person,  may  be  designated  i3y  description,  as  well  as  by  name.' 
It  is  only  necessary  that  the  description  of  tlie  devisee  be  bj' 
words  that  are  sufficient  to  denote  the  person  meant  b}'  the 
testator,  and  to  distinguish  him  from  all   other  persons.^     In 

Bull  V.  Bull,  8  Conn.  48;  Norris  v.  (Enff.  Ch.)  200. 

Thompson's  Exrs.,  19  N.  .J.  Eq.  307;  <*  Wotmoro  v.   Barkor,    52  N.  Y, 

McLouglilin  v.  McLoughlin,  30  Barb.  4'0. 

458.  6  Williams  v.   Williams,   4  Seld. 

'  Morice  ?'.  Bishop  of  Durluim,  10  54S;  Owens  v.  Miss.  Soc,  14  N.  Y. 

Ves.  (Enff.)  522.  38G;  2  Reaf.  on  Wills,  779;  White  v. 

2  Norris  v.  Thompson's  Exrs.,  19  N.  Fisk,  22  Conn.  31 ;  Lcfevre  r.  Lofovi-e, 

J.  Eq.  307.  59  N.  Y.  434. 

"Sfcubbs  V.  Sargon,  3  Myl.  &  Cr.  '  Lefevre  v.  Lefevre,  59  N.  Y.  431. 

(Eng.  Ch.)  507.  « Button  v.  Am.  Tract  Soc'y,  23 

*  Ommanny  v.  Butcher,  1  T.  &  Bt.  Vt.  336;  JIc.\llister  v.  McAllister,  46 


368  ABSTRACTS    OF   TITLE. 


such  cases,  however,  a  judicial  construction  '•■js  necessury  in 
order  to  fully  perfect  the  title  of  the  imperfectly  designated 
devisee,  and  tlie  decree  rendered  upon  such  construction,  to- 
gether with  the  will,  forms  the  basis  of  the  devisee's  claim  of 
title.  Devises  to  corporations  are  particularly  subject  to  tiie 
rule  above  stated,  as  the  testator  frequently  fails  to  insert  the 
strictly  legal  name  of  the  corporation  through  inadvertence, 
ignorance  or  mistake.  Parol  evidence  is  always  admissible 
to  remove  latent  ambiguities,  and  where  there  is  no  person 
or  corjioration  in  existence  precisely  answering  to  the  name 
or  description  in  the  will,  parol  evidence  may  be  given  to 
ascertain  who  were  intended  by  the  testator.  "  A  corpora- 
tion," says  Allen,  J.,  "maybe  designated  by  its  corporate 
name,  by  the  name  by  which  it  is  usually  or  popularly  called 
and  known,  by  a  name  by  which  it  was  known  and  called  by 
the  testator,  or  by  any  name  or  description  by  which  it  can 
be  distinguished  from  every  other  corporation;  and  when  any 
but  the  corporate  name  is  used,  the  circumstances  to  enable 
the  court  to  apply  the  name  or  description  to  a  particular  cor- 
poration and  identify  it  as  the  body  intended,  and  to  distin- 
guish it  from  all  others  and  bring  it  within  the  terms  of  the 
will,  may  in  all  cases,  be  proved  by  parol."  ^ 

§  28.  Precatory  Trusts.  Precatory  trusts  grow  out  of 
words  of  entreaty,  wish,  expectation,  request,  or  recommen- 
dation fi-equently  employed  in  wills,  and  the  authorities,  both 
English  and  American,  are  conclusive,  and  in  the  main  har- 
monious, that  a  trust  will  be  created  by  such  words  as  "hope," 
"wish,"  "request,"  etc.,  if  they  be  not  so  modified  by  the 
context  as  to  amount  to  no  more  than  mere  suggestions  to  be 
acted  on  or  not  according  to  the  caprice  of  the  immediate  dev- 
isee; or  negatived  by  other  expressions  indicating  a  contrary 
intention;  and  the  subject  and  object  be  sufficiently  certain.^ 
An  absolute  gift  to  one  person,  accompanied  with  a  request 

Vt.  272;  Minot  v.  Curtis,  7  Mass.  441 ;  gent  Females,  52  N.  Y.  191. 

Holmes  f.  Mead,  52  N.y.  332;  Gavd-  ^  Bohon  v.  Barret's    Es'r,  11  Re- 

ner  V.  Heyer,  2  Paige,  11.  porter,  839;    Hill  on  Trustees,  92; 

1  Lefevre  v.  Lefevre,  59  N.  T.  434;  Perry  on  Trusts,  4;    Gilbert  v.  Cha- 

St.  Luke's  Home  v.  Asso'n  for  ludi-  pin,  19  Conn.  342. 


WILLS.  369 

to  appropriate  a  particular  sum  to  another  person  creates  in 
the  iinniediate  devisee  a  trusteeship  to  the  extent  of  such 
sum,  nor  does  the  absolute  i^ift  contravene  either  an  express 
or  im])lied  trust  annexed  to  the  o:ift,  as  it  is  a  common  thino- 
to  invent  the  legal  title  and  trusteeship  in  the  same  person, 
Avho  is  to  receive  the  benefit  in  the  event  of  tlie  failure  of  the 
trust.  It  is  equally  well  settled,  however,  that  a  mere  direc- 
tion by  a  testator,  that  a  devisee  shall  pay  a  legacy,  does  not 
thereby  create  a  charge  on  the  land,  and  to  accomplish  this 
there  must  be  express  words  or  necessary  implication  from 
the  whole  will,  that  such  was  the  intention,' 

§29.  Perpetuities.  Attempts  are  frequently  made  in  wills 
(tlK)Ugli  seldom  in  deeds)  to  create  what  tlie  law  regards  as 
perpetuities,  and  this  occurs  whenever  there  is  a  suspension 
of  the  i30wer  of  alienation  for  a  longer  period  than  a  life  or 
lives  in  being  at  the  creation  of  the  estate,^  or  of  sucl)  lives  in 
being  and  twenty-one  years  and  nine  months  at  the  farthest,' 
the  rule  varvini":  somewhat  in  different  States.  In  construinir 
dispositions  of  property  with  reference  to  the  statute  against 
perpetuities,  the  rule  is  settled  that  any  limitation  is  void  as 
in  violation  of  that  statute,  by  which  the  suspension  of  the 
power  of  alienation  will  not  necessarily,  under  all  possible 
circumstances,  terminate  within  the  prescribed  period.  It  is 
notenougii  that  it  w^c^y  terminate,  it  must,  and  if  by  any  possi- 
bility, the  vesting  of  the  estate  may  be  postponed  beyond  the 
statutory  period,  the  limitation  will  be  void.* 

§30.  Lapsed  Devise.  When  a  devisee  named  in  a  will  dies 
during  the  life-time  of  the  testator,  the  devise  is  said  to  lapse 
and  does  not  go  to  the  heirs  of  such  deceased  devisee,  but  falls 
back  into  the  estate  of  the  testator.  The  rule,  though  fre- 
quently acknowledged  to  be  productive  of  great  hardship,  and 

•Cable's  Appeal,  9  Reporter,  57;  Knox  v.  Jones,  47  N.  Y.  :{S9. 

Lupton  r.  Luptnn,  2  Johns.  Ch.  614;  '  Stepliens  r.   Evans,  30   Ind.  39; 

Chapin    v.   Gilbert,    19  Conn.   342;  See  1  Jar.  on  Wills,  226. 

Pennock's  Estate,  20  Ponn.  St.  268;  *  Schettler  v.  Smith.  41  N.  Y.  328; 

Walter's  Appeal,  9-")  Penn.  St.  30.');  Stephens  v.  Evans,  30  Inil.  39;  Lor- 

Taylor  v.  Dodd,  58  N.  Y.  335;  Read  illard  r.  Coster,  5  Paige.  172;  Haw- 

V.  Gather,  18  W.  Va.  263.  ley  v.  Northampton,  8  Mass.  3. 

^Schettlert).  Smith,  41  N.  Y.  328; 

2J: 


370  ABSTRACTS   OF    TITLE. 

to  be  often  contrary  to  the  intention  of  the'  testator,  is  too 
finnly  established  to  be  questioned.  It  is  re^ijarded  as  a  rule 
of  necessity,  and  merely  auiounts  to  this:  That  if  there  be  no 
devisee,  tliere  is  in  effect  no  devise.' 

§  31.  Devises  for  the  Payment  of  Debts.  Land  devised  to 
trustees  for  the  payment  of  debts  and  legacies  is  usually  re- 
jj^arded  in  equity  as  money,^  but  the  heir  at  law  has  a  result- 
ing trust  in  such  land,  after  the  debts  and  legacies  are  paid, 
and  may  restrain  the  trus'^e  from  selling  more  than  is  neces- 
sary to  pay  such  debts  and  legacies;  or  may  pay  them  him- 
self and  have  conveyance  of  that  portion  of  the  land  not  sold 
in  the  first  case,  and  the  whole  in  the  latter,  which  property 
will,  in  either  case,  be  land  and  not  money.*  Equity  will 
extend  the  same  privilege  to  the  residuary  legatee.*  A  mere 
charge  upon  land  stands  upon  a  different  footing,  and  the 
executor  possesses  no  power  to  sell  or  dispose  of  the  land  in 
such  case  except  by  license  or  direction  of  the  probate  court.^ 
The  land  in  the  hands  of  the  devisee  is  burdened  by  the 
charge,*  and  should  he  renounce  the  devise  such  land  will 
descend  to  the  heir  at  law  subject  to  the  charge;'  but  the 
executor  having  no  status  as  a  trustee,  takes  no  interest  in 
same,  and  no  power  can  be  implied  from  the  mere  charge  of 
the  debts  and  legacies  upon  the  lands  devised.* 

§  32.  Charges  on  Lands  Devised.  Heal  estate  is  not,  as  of 
course,  charged  with  the  payment  of  legacies.  It  is  never  so 
charged  unless  the  testator  intended  it  should  be,  and  that 
intention  must  be  either  expressly  declared,  or  fairly  or  satis- 
factorily inferred  from  the  language  and  dispositions  of  the 
will.®     Mere  directions  to  pay  debts  and  legacies  is  not  suffi- 

1  Davis'  Heirs  v.  Taul,  6  Dana,  52.  ^  Birdsall  v.  Hewlett,  1  Paige,  32. 

2  Craig  V.  Leslie,  3  Wheat.  463;  « In  re  Fox,  52  N.  Y.  530. 

Story  Eq.  §  552;  Dill  v.  Wisner,  88  ^Okeson's  Appeal,  59  Pa.  St.  99  ; 

N.  Y.  153.  Kirkpatrick  v.  Chestnut,    5    S.    C. 

^  Craig  V.  Leslie,  3  Wheat.  463.  216  ;  Lupton  ».  Lupton,  2  Johns.  Ch. 

*  Craig  V.  Leslie,  3  Wheat.  463.  614  ;    Cable's  Appeal,   9   Reporter, 

^  Dill  V.  Wisner,  88  N.  Y.  153.  57.     Legacies  are  primarily  payable 

^Gridley  v.  Gridley,  24  N.  Y.  130;  out  of  the  personal  estate. 

Harris  v.  Fij',  7  Paige,  421. 


■WILLS.  371 

cient  to  create  a  charge,'  but  wliere  the  testator  devises  his 
real  estate,  after  payment  of  debts  and  legacies,  or  with  a  di- 
rection that  debts  and  legacies  be  first  paid,  then  the  real 
estate  is  charged  with  tlie  payment  of  them  and  they  become 
a  lien  npon  the  land.^  If  the  devisee  accepts  the  devise,  he 
becomes  personally  liable  for  the  legacies,*  which  still  remain, 
however,  a  charge  upon  the  land.*  When  the  same  sentence 
or  clause  by  which  land  is  devised  imposes  on  the  devisee  the 
duty  of  paying  an  annuity,  and  no  other  fund  is  provided, 
out  of  which  the  payment  is  to  be  made,  the  annuity  is  a 
charge  upon  the  land,^  and  in  like  manner,  where  a  testator, 
without  creating  an  express  trust  to  pay  legacies,  makes  a 
general  residuary  disposition  of  his  whole  estate,  blendino-  the 
realty  and  personalty  together  in  one  fund,  the  real  estate  is 
constructively  charged  with  the  legacies,'  In  everv  instance, 
therefore,  where  legacies  are  directly  or  constructively  char^-es 
or  liens  upon  the  realty,  satisfactory  assurance  must  be  given 
that  the  legacies  have  been  paid  or  the  lien  released  before 
the  title  is  accepted  by  a  purchaser  from  the  devisee.  In  this 
connection  an  important  distinction  should  be  noted,  with  re- 
gard to  the  estate  possessed  by  the  devise,  between  such  legacies 
as  constitute  a  personal  charge  upon  the  devisee,  and  such  as 
are  expressly  charged  upon  the  estate.  Where  an  estate  is 
devised  subject  to  the  payment  of  legacies,  if  the  legacies 
are  made  a  personal  charge  upon  the  devisee,  an  acceptance 
of  the  devise  operates  to  make  such  legacies  a  personal   lia- 

'  Taylor  v.  Dodtl,  58  N.  Y.  335  ;  legacies,    such    purcliasers    will    be 

Walter's  Appeal,  95  Pa.  St.  305.  constructively  affected  with  notice  of 

^Lupton  V.  Lupton,  2  Johns.  Ch.  such  charge,  and  equity  will  enforce 

614;  Wood  V.  Sampson,  25  Gratt.  it  upon  the  land  in    their   hands": 

(Va.)  845.  2  Redf.  on  Wills,  *210,  Citing  Har- 

» Birdsall  v.  Hewlett,  1  Paige,  33 ;  ris  - .  Fly,  7  Paige,  421  ;  Wallington 

Burch  V.  Burch,  52  Ind.  136.  v.  Taylor,  Saxton,  314;  and  see  Aston 

*  "  It  seems  to  be  well  settled,"  r.  Galloway,  3  Ired.  Eq.  (N.  C.)  126. 
says  Mr.  Redfield,  "that  where  lands  'Merrill  p.  Bickford,  65  Me.  118. 

are   held   by  subsequent   bona  fide  ®  Lewis   r.  Darling,    16    How.    1- 

purchasers  for  value,   but   who  are  Nichols  r.  Posfletliwaite,  2  Dall.  131; 

obliged  to  trace  title  through  a  de-  Hill  on  Trustees,  860  ;   Gallagher's 

vise,  whereby  a  charge   is  created  Appeal,  48  Pa.  St.  121. 
upon   the   land  for  the  payment  of 


372  ABSTRACTS    OF    TITLE. 

bilitj  of  tlie  devisee,  wliile  lie  will  take  the  estate  devised  as 
a  purchaser  in  fee,  but  if  tlie  leij^acies  are  charged  upon  the 
estate  devised,  the  devisee  does  not  take  as  a  purchaser,  but 
as  a  beneficial  devisee.* 

§  33.  The  Residuary  Clause.  In  a  majorit}^  of  wills  there 
is  inserted  at  the  close  a  general  devise  of  everything  that 
the  testator  has  not  succeeded  in  disposing  of  in  former  parts 
of  the  will,  which  is  called  the  residuary  clause.  This  portion 
of  the  instrument  should,  as  a  rule,  be  copied  entire,  as  it  is 
often  of  vital  importance  in  determining  questions  of  title 
under  lapsed  devises  and  of  lands  not  speciiically  granted  or 
alluded  to  elsewhere  in  the  instrument.  Where  the  language 
of  a  residuary  clause  has  sufficient  scope  and  extent,  evincing 
the  intent  of  the  testator  to  take  up  and  carry  into  the  resid- 
uary estate  all  of  his  estate  remaining  at  his  death  undisposed 
of  for  any  reason,  the  residuary  clause  will  receive  and  pass  a 
lapsed  legacy  or  devise.^  But  when  the  residuary  clause  does 
not  by  its  own  tei'ms  take  in  a  lapsed  legacy  or  devise,  so  as 
to  disclose  the  intent  of  the  testator  to  pass  the  lapsed  estate 
into  the  residue,  the  rule  is  different.^  Void  and  illegal 
legacies  or  devises  come  under  the  rule  lirst  above  stated,* 
and  generally,  unless  a  contrary  intention  is  manifested,  the 
residuum  will  take  and  pass  everything  of  the  nature  above 
indicated. 

A  different  rule,  however,  applies  to  the  residue  itself,  for  if 
a  gift  of  the  residue,  or  any  part  of  it  fails,  whether  by  lapse, 
illegality,  or  revocation,  to  the  extent  that  it  fails  the  will  is 
inoperative,  and  the  subject  of  the  gift  passes  to  the  n6xt  of 
kin  according  to  the  statute  of  descents.* 

§34.     Codicils.     Acodicil  is  defined  as  some  addition  to,  or 

*  Funk  V.  Eggieston,  92  111.  515.  595.     A  distinction  is  made  in  some 
^  Younga  v.  Youngs,  45  N.  Y.  254;       States  between  legacies  and  devises. 

Patterson  v.  Swallow,  8  Wr.  (Pa.)  The  legacy  falling  into  the  residuum; 

490;  Hillis  \k  Hillis,  16  Hun  (N.  Y.),  the  lapsed  devise  descending  to  the 

76.     Local  statutes   will  sometimes  heirs:     See  On-ick  i?.  Boehm,  49  Md. 

materially  aflt'ect  the  doctrine  stated  2. 

in  the  text.  ^Burnet  v.  Burnet,  30  N.  J.  Eq. 

3  Yard  v.  Murry,  86  Pa.  St.  113.  595. 

*  Burnet  v.  Burnet,  30  N.  J.  Eq. 


WILLS.  373 

qnalificatlon  of.  a  last  will  and  testament.'  "Where  it  is  in- 
irreconcilable  conflict  with  the  will,  it  must  prevail  as  a  revoca- 
tion, since  it  is  the  last  expression  of  the  testator's  intent  in 
the  disposition  of  his  property.^  The  authorities  fully  establish 
the  proposition  that  a  codicil  which  does  not  in  terms  revoke 
a  clause  in  the  will,  bnt  modifies  it  in  some  of  its  features 
entirely  consistent  with  the  retention  of  its  other  provisions, 
will  be  allowed  to  have  that  partial  effect,  and  the  clause 
thus  changed  will  remain  as  the  embodiment  and  expression 
of  the  testator's  intent,  while  if  duly  executed  with  all  the 
formalities  required  by  law  it  will  operate  to  confirm  and  re- 
publish the  rest  of  the  will,"  unless  the  testator  declares  that 
he  does  not  intend  that  it  shall  have  that  effect.*  It  will  thus 
be  seen  that  the  codicil  plays  a  most  important  part  both  in 
the  disposition  of  the  property  and  in  the  matter  of  validat- 
ing that  which  has  preceded  it,  and  which,  by  reason  of 
defective  execution  or  other  circumstances,  has  become  in- 
operative.' It  is  an  established  rule  not  to  disturb  the  dis- 
positions of  the  will  further  than  is  absolutely  necessary  to 
give  effect  to  the  codicil,®  and  the  intent  of  the  testator  is 
alwavs  soniJ:ht  to  srive  effect  to  both  instruments  when  they 
can  operate  in  perfect  harmony.^  But  whei'e  the  absolute  and 
unqualified  gift  in  the  codicil  is  incompatible  with  the  dis- 
position of  the  land  made  in  the  will,  and  must  have  a  rex^ok- 
ing  efficacy  or  be  itself  nugatory,  the  will  must  yield  to  the 
codicil.*  A  codicil  depending  upon  the  body  of  the  will  for 
interpretation  or  execution  can  not  be  established  as  an  in- 
dependent will,  when  the  will  itself  has  been  revoked.' 

§  35.     Formal  Requisites.     There  are  a  number  of  indis- 

>  1  Bou.  Law  Diet.  285.  Jarm.  on  Wills,  78. 

2  Hallybuvton  v.   Carson,    15  Re-  *  Jarm.  on  Wills,  343,  note, 

porter,  154.  ^  Hallyburton  ».   Carson,    15   Re- 

^O'llara  on  Wills,  6;  Brown  v.  porter,  154. 

Clark,  77  N.  Y.  3G9;  Van  Cortlandt  « Wainwrifrlit  r.  Tuckerman,  1:'>0 

V.  Kip,  1  Hill,  590;  Mooers  r.  White,  Mass.  232;   Vaughan  r.  Biinoli,   53 

6  Johns.  Ch.  375;  1  Jarin.  on  Wills,  Miss.  513. 

78.  *Youse  v.  Fonnan,  5  Bush  (K}-.), 

*  Van  Cortlandt  v.  Kip,  1  Hill,  590.  337. 

*See  Wms.   on  Executors,  97;   1 


374  ABSTRACTS    OF   TITLE. 

pensable  requisites  to  a  valid  will,  which,  though  of  tlie  lilglicst 
importance  generally,  do  require  more  than  passing  mention 
in  this  work.  These  requisites  do  not  relate  to  form,  hut  go 
to  the  very  substance  of  tlie  instrument.  They  relate  mainly 
to  the  testamentary  capacity  of  the  testator  as  dependent  on 
soundness  of  mind,  etc., and  to  his  surroundings  and  the  effect 
of  I'raud,  undue  influence,  etc.  All  of  these  questions,  however 
imjwrtant  they  may  be,  do  not  arise  ordinarily  in  the  examina- 
tion of  a  title  derived  through  or  under  a  will,  for  they  are  all 
supposed  to  have  been  duly  investigated  during  the  probate  and 
satisfactorily  answered  before  the  will  was  permitted  to  become 
operative  as  a  conveyance.  With  respect  to  the  strictly  formal 
parts  a  very  simple  and  informal  document  will  be  sustained 
as  a  will,  where  the  writing  relied  on  has  been  executed  in 
conformity  to  the  statute,  and  shows  upon  its  face  a  declaration 
by  the  testator  that  same  is  his  will.^  The  statute  usually 
requires  the  paper  to  be  signed  by  the  testator,  but  the  sig- 
nature may  be  original  or  by  adoption,^  and,  as  a  rule,  it  must 
be  attested  by  two  or  more  subscribing  witnesses,  who,  at  the 
testator's  request,  affix  their  signatures  in  his  presence.^  As 
the  execution  and  publication  are  also  matters  of  strict  proof 
in  the  probate  court,  they  may  be  presumed  to  have  been  in 
conformity  to  law  after  the  will  has  been  duly  presented  and 
admitted  in  such  court.  Should,  however,  the  examiner  ob- 
serve palpable  defects  of  form  they  should  be  presented  in  the 
abstract  that  proper  inquiries  may  be  founded  on  them. 

§  36.     Abstract  of  "Wills.     An  eminent  English  conveyan- 
cer* once  said,  that   he  could   scarcely  adniit  of  a  will  being 

^  3  Wash.  Real  Prop.  *6S1 ;  Turner  ^  A  mark  has  been  held  a  good  sisr- 

V.  Scott,  51  Pa.  St.  126;  Burlington  nature  even    when    the  statute  uses 

University  f.  Barrett,    22  Iowa,  60;  the  word. s»&scr/fee(7:  Van Hanswyck 

Wall   V.   Wall,    30    Miss.    91.     Al-  v.  Wiese,  44  Barb.  494;  Jackson  v. 

though  an  instrument  be  in  the  form  Jackycn,  M9  N.  Y.  153. 

of  a  deed,  and  called  such,  still  if  its  ^  Consult  Hopper's  Will,    1   Tuck, 

purpose  be  testamentary,  and  it  is  (N.  Y.  Sur.)   378;  Lawrence's  Will, 

only  to  be  consummated  by  the  death  Id.  243;   Holloway   v.   Galloway,  51 

of  the  maker,  effect  will  be  given  to  111.  159. 

it  as  a  will  and  not  as  a  deed:  Gill-  *  Mr.  Barton, 
ham  V.  Mustin.  42  Ala.  365. 


WILLS.  375 

abstracted  at  all,  and  stroiii^lv  recommended  that  it  be  copied 
instead,  in  order  that  counsel  iniglit  have  an  opportunity  of 
judiring  by  the  context  as  well  as  by  the  particular  words  of 
the  devise  or  becjuest.'  The  reason  assigned  by  the  English 
conveyancer  is  a  good  one,*  yet  in  preparing  the  abstract  of  a 
will  it  is  not  usually  necessarj'-  that  the  entire  instrument 
should  appear,  but  only  such  parts  as  have  special  or  general 
reference  to  the  property  in  question.  Modern  wills  in  many 
instances,  and  ancient  wills  uniformly,  contain  a  preamble 
dedicating  the  testators'  souls  to  God,  expressing  the  sound- 
ness of  tlieir  minds,  the  health  or  debility  of  their  bodies, 
and  other  particulars  of  no  special  imjxjrtance  and  which 
liave  no  necessary  connection  or  relation  to  the  subject  of  the 
examinatiou,  and  which  may  in  all  cases  be  safely  omitted. 
The  bequests  and  gilts  of  personalty'  are  alwavs  omitted, 
save  where  a  legacy  constitutes  a  charge  upon  the  land,  in 
which  case  it  would  become  material.  Devises  of  realty, 
other  tlian  the  subject  of  the  examination,  may  be  advanta- 
geously omitted,  but  the  residuary  clause,  though  couched  in 
general  terms,  should  invariably  be  inserted.  The  language 
employed  by  the  will,  aside  from  the  strictly  formal  parts, 
should  be  closely  if  not  literally  followed,  as  well  in  respect 
to  the  property  devised  as  the  particular  estate  therein  granted. 
The  essential  features  of  a  modern  will  consist  of  the  par- 
ties, testator,  legatees  and  devisees;  the  legacies  which  are 
a  charge  on  land;  the  specific  devises;  the  trusts  and  powers; 
the  appointment  of  executors;  the  residuary  clause;  and  the 
execution   and   attestation.'      In  drawing  the  synopsis    the 

'  Moore  on  Abst.  39.  tation  by  wb'ch   the  estate  is  de- 

''This  observation    derives    addi-  vised,  the  power,  if  any,  in  pursuance 

tional  force  from  the  fact  tliat,  for-  of  which  the   devise  is  made;   the 

merly,  real  estate    wills    were    not  words  of  modification,  or  of  severance 

proved  in  England.  of  the  tenancy,  if  there  be  any;  the 

*  Mr.  Preston  says  (with  reference  words  of    qualification  which   may 

to  the  method  of  abstracting  wills),  abridge  or  defeat  the  estate;  the  uses 

"that  the  points  to  be  attended  to,  and  trusts,  if  any  are  created;  the 

are  to  show,  to  whom  the  lands  are  conditions,  or  conditional  limitations 

devised;  the  words  used  in  descrip-  by  way  of  executory  devise,  orother- 

tion  of  the  lands;  the  words  of  limi-  wise,  annexed  to  the  devise  or  ap- 


376  ABSTRACTS    OF   TITLE 

general  form  of  presenting  conveyances  by  deed  is  fullowed 
as  closely  as  may  be;  the  particular  words  employed  in  creat- 
ing the  estates  devised  are  given,  and  all  inartificial  expres- 
sions rendered  with  literal  exactness.  Imperfect  designation 
of  persons  or  property,  and  manifest  omissions,  errors  and  ir- 
regularities, are  noted  in  the  same  manner  as  in  case  of  deeds. 
The  execution,  if  regular,  may  be  passed  without  notice,  as 
the  proof  of  probate  constitutes  the  proof  of  the  due  and 
proper  execution  of  the  Will,  yet  where  the  execution  is  mani- 
festly erroneous,  or  not  in  compliance  with  law,  it  is  recom- 
mended that  same  be  shown  as  fully  as  in  case  of  defective 
execution  by  deed,  and  supplemented  by  the  special  proof 
offered  on  the  hearing  before  the  probate  court. 

§  37.  Method  of  Arrangement.  There  are  two  methods 
of  showing  abstracts  of  wills:  one  (in  case  of  record  as  a  con- 
veyance,) as  an  independent  circumstance,  the  same  as  other 
conveyances,  and  forming  a  separate  link  in  the  chain;  the 
other  in  connection  with  the  proceedings  had  in  the  probate 
court  in  relation  to  the  probate  of  the  will  and  the  settlement 
of  the  estate.  Either  method  may  be  adopted  as  will  best 
serve  the  examiner's  purpose,  but  it  is  believed  the  former 
method  possesses  advantages  over  the  latter,  and  is  that 
which  should  be  adopted  whenever  the  will  has  been  recorded 
as  directed  by  law.  In  the  event  of  the  first  named  method 
being  used,  the  proof  adduced  before  the  probate  court,  or  a 
summary  thereof,  should  also  be  appended,  such  proof  being 
required  by  statute  to  be  recorded  with  the  will.  The  pro- 
ceedings relative  to  the  settlement  of  the  estate  then  follow 
as  a  separate  showing.  When  the  latter  method  is  employed. 
a  digest  of  the  will  should  be  inserted  at  the  beginning  of  the 
synopsis  of  the  proceedings.  When  conveyances  have  been 
made  by  heirs  or  devisees  prior  to  probate  or  record,  the 
chronological  arrangement  should  follow  the  dates  of  execu- 

pointment;  the  charges  imposed  on  to  the  title;   and   when    leasehold 

the  devisee;  the  indemnity,  if  any,  lands  are  the  subject  of  the  title,  the 

against  seeing  to  the  application  of  the  appointment  of  executors";   Prest. 

purchase  money,  or  mortgage  money;  on  Abst.  180. 
such  powers,  if  any,  as  are  material 


■WILLS.  377 

tion,  rather  than  of  proof  or  record,  except  in  the  case  oijpost 
obit  conveyances. 

§  38.  Practical  Examples.  Following  this  will  be  found 
a  practical  example  of  an  abstract  of  a  will  and  ]>roof  of  pro- 
bate. The  will  selected  is  of  the  most  simple  form,  and  no 
attempt  has  been  made  to  illustrate  special  clauses,  though  an 
example  of  these  occurs  in  the  forms  ^iven  in  connection 
with  the  abstract  of  probate  proceedings.  The  proof  of  pro- 
bate is  that  now  in  nse  in  "Wisconsin,  Minnesota  and  other 
western  States,  and  will  serve  to  indicate  the  method  of  show- 
ing these  matters  even  where  the  record  of  proof  is  diflerent: 

Last  Will  and  Testamenf  ]       Dated  Oct.  10,  1880. 

of  I       Recorded  July  i,  1883. 

Thomas  W.  Watson,      [       Book  100.  jpage  550. 

deceased.  J       Directs^  t  uit  all  just  dehts,  in- 
cluding funeral  expenses  and 
expenses  of  administration,  he  paid  by  his  executor.^ 

Gives  and  bequeaths  to  his  wife,  Annie  Watson,  one  thou- 
sand dollars  annually,  to  be  paid,  etc.,  \set  out  such  legacies 
as  constitute  a  charge  on  the  land]  together  with  sundry  other 
bequests  and  legacies. 

Devises  and  bequeat/is  to  his  son,  George  Watson,  etc.,  [set 
out  the  specific  devises.] 

Gives,  devises  and  bequeaths  all  the  residue  and  remainder 
of  his  estate  to,  etc.,  [set  out  the  residuary  bequests  vei'batim.] 
Appoints  John  Williams  his  executor,  etc.,  [_note  the  trusts 
and  powers,  ifa?iy.] 

Add  facts  of  execution.' 

'  If  desired,  the  ordinary  caption  of  executing  his  will" :  1  R  'df.  on  "Wills, 

a  deed  may  be  used;  as, — to — ,  the  *674. 

nature  of  the  instrument  being  indi-  ^  The  examiner  will  notice  whether 

cated  by  its  name  in  the  margin.  any  of  the  witnesses  are  named  in 

2  "The  direction   of  paymonts  of  the  will  as  devisees  or  legatees,  and 

debts   and   funeral    expenses,"   ob-  in  case  of  a  correspondence  of  names 

serves  Mr.  Redfield,  "  is  now  merely  show  the  same.     As  a  rule,  any  per- 

formal,  except  that  as  it  may  some-  son  taking  any  benefit  under  a  will 

times  aid  in  the   construction  of  a  is  excluded  from  being  a  witness  to 

will,  by  showing  that  the  subject  of  same,  or  else  the  provision  in  (heir 

the  testator's    debts    was  broufjht  favor  is  rendered  void, 
distinctly  to  his  mind,  at  the  time  of 


378  ABSTRACTS    OF    TITLE. 

Where  a  codicil  is  appended  it  should  be  abstracted  as  a 
separate  instruDient  and  its  terms  fully  set  forth,  particularly 
when  it  tends  to  revoke  any  provision  of  the  will,  or  alters 
the  prior  disposition  of  the  real  estate  of  the  decedent.  Insucli 
case  say:  "Appended  to  tlie  foreojoing  is,"  and  tlien,  as  in  case 
of  the  original,  follow  in  the  margin  with,  ''  Codicil  to  the  last 
will  and  t(;stanient,"  etc.,  giving  the  date  and  substance  of  the 
codicil.  With  all  wills  tiled  for  record  as  conveyances  the  law 
requires  the  "proof  of  probate"  to  be  also  tiled.  Such  proof 
is  generally  in  the  shape  of  a  certificate  by  the  judge  or  clerk 
of  the  probate  court,  and  a  synopsis  of  same  should  immedi- 
ately follow;  thus, 

A]) fended  is: 


Certificate 

Edward  Martin^ 
County  Judge  of  Keno- 
sha County^  Wis. 


Proof  of  will. 
Dated  July  1,  1883. 
Recites,  that  on  the  15th  day 
of  March,  1883,  at  a  regular 
term  of  the  County  Court  of 
Kenosha  County,  Wis.,  pursuant 
to  notice  duly  given  as  required  by  laiu,  William  Jaclison  and 
James  Smith,  suhscrihing  witnesses  to  the  last  will  and  testa- 
ment of  Thomas  W.  Watsoji,  late  of  the  Comity  of  Kenosha, 
dec'd,  which  is  ^^  hereto  annexed,''^  xoere  lyroduced,  sworn  and 
examined  {and  the  said  loill  heing  contested,  and  other  loitness- 
es  as  well  for  the  contestant  as  for  the  proponent  of  said  will., 
having  heen  produced,  sioorn  and  examined}),  and  proof s  hav- 
ing heen  heard  before  said  court,  and  the  coxirt  having  there- 
upon found  that  said  iastnunent  loas  in  all  things  duly  exe- 
cuted as  h'islast  will  and  testament hy said  Thomas  W.  Wat- 
son, on  the  10th  day  of  October,  1880/  that  he  loas  then  of  full 
age,  and  of  sound  mind,  and  that  said  instrument  was  duly 
attested  and  subscribed  {in  his  presence). 

Thereupon  said  instrument  being  duly   proved,^  was  by 
said  cotirt  duly  alloioed,  and  probate  thereof  granted  as  and 

^  The  certificate  of  probate  of  a  proved.  If  conclusions  of  law  are 
will  need  not  set  out  in  detail  the  stated,  it  is  sufHcient:  Mosley  v. 
evidence  upon   which  the    will  was      Wingo,  7  Lea  (Tenn.),  145. 


WILLS.  '679 

for  thelastwlll  and  testament  of  said  Thomas  TT.  Watso7i, 
dec'd. 

Signed,  hj  said  Judge^  and  the  seal  of  the  Kenosha  County 
Court  ajjixed. 

§  39.  Probate  of  Wills.  Probate  of  a  will  lias  been  de- 
fined as,  the  ])roof,  before  an  officer  autliorized  by  law,  that 
an  instrument  offered  to  be  proved  or  recorded  is  the  lai>t  will 
and  testament  of  the  deceased  person  whose  testamentary  act 
it  is  alleged  to  be.'  It  is  the  authentication  of  the  instru- 
ment, and  that  which  ij^ives  to  it  its  leojal  effect  and  validity 
as  a  conveyance,  and  nothino^,  says  Lord  Ivenvon,^  "  but  the 
probate  or  letters  of  administration  with  the  will  annexed, 
are  legal  evidence  of  the  will,"  language  which  has  been  re- 
peated and  apj)rovcd  by  the  Su}>reme  Court  of  the  United 
States.'  A  will,  therefore,  which  has  not  been  admitted  to 
probate,  though  admissible  pei'haps  in  connection  with  proof 
of  adverse  possession,  is  not  evidence  of  title  in  a  court  of 
law,*  nor  would  it  afford  constructive  notice  if  recorded. 

§  40.  Effect  of  Probate.  The  probate  of  a  will,  if  decreed 
by  a  court  of  competent  jurisdiction,  establishes  the  facts:  1, 
that  the  testator  at  the  time  of  executing  the  instrument, 
was  of  sound  and  disposing  mind  and  memory,  capable  of 
understanding  the  act  he  was  doing,  and  the  relation  in 
which  he  stood  to  the  object  of  his  bounty,  and  to  the  per- 
sons to  whom  the  law  would  have  given  his  property  if  he 
had  died  intestate;  2,  that  the  instrument  was  executed  with- 
out fear,  fraud  or  undue  influence  by  which  his  own  inten- 
tions were  controlled  and  su])])lanted  by  those  of  another;  8, 
that  he  executed  the  instrument  animo  testandi,  with  an  un- 
derstanding and  ])urpose  that  it  should  be  his  last  will  and 
testament;''  and  4,  it  is  presumptive  evidence  of  the  death  of 

'2  Bon.   Law  Diet.  378;  Tcttit  v.  *  Willamette,  etc.,  Co.  v.  Gordon, 

Black,  15  Reporter,  90.  6  Oreg.  175;  Wood  i;.  Matthews,  5  1 

2  Rex  V.  Inhab.    of  Nealherseal,  4  A!a.  1;  Pitts  v.  Melser,  72  Ind.  4(i0; 

T.  R.  (Eng.)  258.  Shumway  v.  Holbrook,  1  Pick.  lU. 

'  Aruistroug  v.   Lear,    12  Wheat.  ''  Barker   v.   Coiuins,     110    !Mu.ss. 

175.  477. 


380  ABSTKACTS    OF    TITLE. 

the  person  whose  will  it  purports  to  establish.'  Such  decree  is 
a  judf^ment  in  r<?7/i,''' and  in  the  absence  of  statutory  provis- 
ions, is  conclusive  us  against  all  the  world,  as  to  the  validity 
of  the  will,^  and  affirms  the  title  of  the  beneficiary  under  it 
from  the  time  of  the  testator's  death,  relating  back  so  as  to 
make  valid  whatever  has  been  previously  done,  which,  under 
the  will,  after  probate,  the  beneficiary  could  lawfully  have 
done.*  But  though  probate  establishes  the  sufficiency  of  the 
will,  and  confirms  the  claims  of  those  holding  under  it  so  far 
as  to  make  it  evidence  of  title,  it  does  not  determine  the  title 
to  the  property,  nor  establish  the  validity  of  any  devise 
given  by  it,  the  will  having  no  greater  effect  after  probate 
than  other  legal  conveyances.^ 

§  41.  Foreign.  Probate.  In  order  to  entitle  a  devisee  of 
lands  under  a  will  probated  in  a  foreign  jurisdiction,  to  de- 
duce legal  title  to  same  inthecourts  of  the  State  where  the  land 
is  located,  it  is  necessary  that  the  will  be  also  probated  in  the 
local  courts.  This  matter  is  governed  by  statute  which  gen- 
erally provides  that  the  cop}'^  of  the  will  presented  must  be 
accompanied  by  the  foreign  probate  and  due  authentication 
thereof,  these  together  constituting  the  one  instrument  or 
subject-matter  to  be  acted  upon  under  tlie  statute;  and  all  are, 
as  a  rule,  essential  to  authorize  the  probate  court  to  exercise 
jurisdiction.® 

§  42.  Abstract  of  Probate  Proceedings.  It  is  estimated 
that  about  once  in  every  twenty-five  years  all  the  real  estate  in 
the  country  passes  under  the  supervision  of  the  probate  courts, 
and  whether  the  estimate  be  based  on  correct  or  incorrect 
data,  it  is  certain  that  there  are  but  few  titles  of  twenty-five 
3'ears  duration  that  do  not  show  testamentary  conveyances  or 

1  Carroll  v.  Carroll,  6Thomp.  &  C.  *  Stuplien  v.  Ellis,  35  Mich.  446; 
(N.  T.)  294;  Belclen  v.  Meeker,  47  Allaire  v.  Allaire,  37  N.  J.  L.  312; 
N.  Y.  307.                                                 Dublin  v.  Chadbourn,  16  Ma«s.  433. 

2  Hall  V.  Hall,  47  Ala.  290.  ^  Fallon  v.   Chidester,    46   Iowa, 
^  Brock  V.  Frank,  5  Ala.  85;  Janes      588;  Greenwood  v.  Murray,  26  Minn. 

V.  Williams,  31  Ark.  175;  Tucker  v.  259. 

Whitehead,    58   Miss.    762.     In   re  ^Vo^q  v.    Cutler,  34  Mich.    150; 

Williams,  1  Lea  ( Tenn.),  529;  Orr  v.  Ward  v..  Gates,  43  Ala.  515. 
G'Brien,  55  Tex.  149. 


WILLS.  3S1 

descents.  Tlie  records  and  proceedings  of  tliese  courts,  tliere- 
fore,  have  a  direct  and  important  bearing  on  every  title  of 
lonw  standinff,  and  are  amons:  the  mnnimetits  that  ijo  to  give 
stability  and  security  to  the  possession  of  the  party  asserting 
sucli  title.  The  ordinary  proceedings  of  county  and  probate 
courts  which  have  a  direct  influence  upon  land  titles  are:  the 
probate  of  wills  and  issuance  of  letters  testamentary  and  of 
adiinnistration;  the  inventory  and  collection  of  the  effects  of 
deceased  persons;  the  proof  and  payment  of  debts  and  legacies; 
the  assignment  of  dower  and  homesteads;  the  sale  of  lands 
by  executors  and  administrators;  the  allowance,  distribution 
and  partition  of  the  estates  of  deceased  persons;  and  in- 
cideDtall}'  of  proceedings  relative  to  guardians  and  wards, 
adoption,  etc.  Sometimes  the  peculiar  exigencies  of  the  case 
may  include  all  of  the  different  matters  just  enumerated; 
again  the  desired  end  ma}'  be  attained  with  a  showing  of  but 
one  or  two.  So,  too,  it  will  sometimes  be  necessary  that  a 
very  full  exemplification  must  be  given  of  the  matters  pre- 
sented and  the  action  had  thereon,  while  under  other  circum- 
stances only  a  brief  mention  will  be  required.  The  matter 
will  therefore  rest,  in  a  large  measure,  in  the  discretion  of 
the  examiner.  Upon  the  probate  of  wills,  the  abstract  of  the 
proceedings  should  show:  the  })roof  of  the  will;*  the  accept- 
ance or  renunciation  of  the  trust  by  the  executor;  the  issu- 
ance of  letters  testamentary,"''  and  qualification  of  the  executor; 
the  inventory  of  real  estate;  the  proof,  allowance  and  pay- 
ment of  claims.  This  much  is  indispensable,  but  other  ste])s 
and  proceedings  may  be  profitably  shown.  The  degree  of 
detail  to  be  observed  must  be  governed  in  most  respects  by 

*  A  transcript    of   the   record  of  quired  by  statute,  the  probate  will 

probate   of    a   will   devising   lands,  be  prima  facie   evidence,   and  will 

made  before  a  proper  tribunal,   is  of   itself   be  sufficient   to  establish 

competent   evidence   of  title   in    an  title,    if   not  overcome    by    counter 

action  of  ejectment,    if  the  record  proof:  Allaire  v.  Allaire,  37  X.  J.  L. 

contains  the  proofs  taken  before  the  312. 

court,   as   required   by  the  statute;  ^  fhe  issuance  of  letters  presump- 

and,  if  the  proofs  contained  in  the  tively  establishes  the  fact  of  death: 

record   show  that  the   will  was  ex-  Carroll  r.  Carroll,   6  Thomp.  vk  C. 

ecuted  with  all   the   formalities  re-  (N.  Y.)  294. 


382  ABSTRACTS    OF   TITLE. 

the  judij^nient  of  the  examiner  in  tlie  absence  of  instructions 
from  the  client.  A  summary  is  presented  by  way  of  illustra- 
tion, and  which,  perhaps,  is  full  enough  for  ordinary  cases: 

County  Courts  Kane  county^ 


In  the  matter  of  the  estate " 

William  II.  BlacJc, 
deceased. 


In  Prolate. 

Case  No.  3,  in  Box  lh3} 
Will  of  William  II.  Black. 
Dated  May '2,  1877. 
Filed  October  13,  1880. 
Proven  and  admitted  to  record,  January  28,  1881. 
Recorded  in  Vol.  2,  page  383. 
Said  testator  disposes  of  his  estate  as  folloiDs: 
Directs  the  payment  of  all  his  just  debts  and  funeral  ex- 
penses. 

Devises  to  his  execidor  {or  his  successor)  his  "  home  flace^"^ 
consisting  of  house  and  ham,  and  about  two  acres  of  land  on 
the  west  side  of  Park  Place,  and  running  through  to  Tenth 
street,  and  lying  between  Forrest  avenue  and  Grinnell  street, 
in  the  city  of  Elgin,  Kane  county.  Ills.,  in  trust,  to  lease  same 
or  to  sell  same  and  apply  income  and  proceeds  for  the  use  and 
comfort  of  his  wife,  Anna  Black,  during  her  natiiral  life,  and 
for  the  support  and  education  of  his  son,  Walter  Black,  and 
at  the  death  of  his  said,  '^^i/'^)  if  undisposed  of,  to  be  trans- 
ferred and  conveyed  to  his  son,  Walter  Black,  if  then  living, 
or  to  his  issue,  if  any,  if  he  be  not  living,  or  to  testator'' s  heirs 
at  law,  if  his  said  son  shall  be  then  dead,  leaving  no  issue. 

Gives  and  devises  to  his  nephew,  John  Black,  son  of  his 
brother,  James  Black,  etc. 

If  it  is  desired  to  set  out  the  entire  will,  which  will  rarely 
be  the  case,  the  devises  and  bequests  will  follow  here  in  nar- 
rative form.  As,  however,  the  inquuy  will  rarely  cover  more 
than  one  specific  tract,  tlie  particular  devise  which  has  refer- 
ence to  such  tract  is  shown  in  detail,  and  general  reference 
made  to  all  others;  as. 

Devises  to  various  other  persons,  certain  real  estate  not 
now  in  question  [or,  not  covered  by  this  examination). 

'  This  has  reference  to  the  depository  of  all  the  papers  in  the  case. 


WILLS.  383 

Unless  there  are  legacies  which  are  cliarged  n})on  the  land, 
tlie  personal  bequests  may  be  disregarded  except  the  residuary 
clause  which  next  follows: 

Gives,  devises  and  bequeaths  all  the  rest  and  residue  of  his 
property,  real  and  personal,  including  lapsed  legacies  and 
devises,  unto  his  son,  Walter  Black,  subject  to  t/ie  j^aynient  of 
the  following  annuities,  to  wit: 

To  his  mother,  etc.,  \s(:t  out  the  annuities']. 

A^ypjoints  his  brother,  James  Black,  sole  executor  and  trus- 
tee, and  in  case  of  his  death,  declination,  resignation  or  iw.i- 
bilitg  to  act,  directs  that  Clarence  D.  Perry  act  in  his  place, 
waiving  security,  and  giving  his  executor  full  p)ower  to  sell 
any  part  or  parts  of  the  real  estate  herein  devised  to  his  son 
Walter,  at  public  or  private  sale,  and  to  give  good  and  suffi- 
cient deeds  thereof  to  the  purchaser  or  purchasers  so  that  they 
shall  not  be  answerable  for  the  application  of  the  purchase 
money,  and  in  case  of  such  sales  the  proceeds,  after  p>ayi)ig 
debts,  legacies  and  annuities,  to  go  to  his  son  Walter  as  part 
of  the  residue  of  his  said  estate. 

Three  witnesses. 

Benunciation  of  James  Blade  of  his  appointment  as  exec- 
utor and  trustee,  filed  January  28, 1881. 

Petition  of  Clarence  D.  Perry  for  proof  of  will  and  letters 
testamentary,  filed  January  29,  1881, 

/Said  petitio7i  represents  that  William  II.  BlacTx  died  tes- 
tate May  27,  1880,  leaving  him  surviving  Anna  Black,  his 
ividow,  and  Walter  Black,  his  only  son,  his  only  heir  at 
lata. 

Sworn  to  Nov.  26,  1880. 

Letters  Testamentary  to  Clarence  D.  Perry,  issued  dated 
J  any.  SI,  1881.     Recorded  in  Vol.  2,  pg.  273. 

BoQid  in  sum  of  %80,000.00,  security  waived,  filed  and  ap- 
proved Jany.  31,  1881.     Recorded  in  Vol.  2,  pg.  273. 

Warrant  to  appraisers  issued,  dated  January  31,  1881. 

Appraiser'' s  report,  filed  and  approved  June  8,  1881,  shou:s 
no  propei'ty  belonging  to  said  estate  subject  to  appraise- 
ment. 


384  ABSTRACTS    OF   TITLE. 

Appraisement  ofwidoio's  award  filed  and  approved  June 
5,  1881.     Total  value,  %2,800.00. 

Inventory  filed  and  a^pproved  June  8,  1881.  Recorded  in 
Vol.  10,  pg.  627. 

Mentions  real  estate  as  follows: 

Lots  19  and  W,  Block  1,  etc. 

Proof  of  publication  and  posting  of  notices  for  adjudi- 
cation filed  July  12,  1881,  approved  in  open  court  July  18, 
1881. 

Adjudication  ordered  July  18,  1881. 

Sunch'y  claims  filed  and  allowed  amounting  to  the  sum  of 
%5,0Ji2.S0. 

Continue  in  this  manner,  showing  all  important  steps,  un- 
til final  settlement  and  discharge  of  executor. 


CHAPTER  XXIY. 

LIENS,  CHARGES,  AND   INCUMBRANCES. 


§1. 

Liens  generally. 

§12. 

Municipal  liens. 

2. 

How  created. 

13. 

OfHcial  bonds. 

3. 

Operation  and  effect. 

14. 

Leases. 

4. 

Method  of  arrangement. 

15. 

Vendor's  liens. 

5. 

Mortg  ges. 

16. 

Mechanic's  liens. 

6. 

Dower. 

17. 

Priority. 

7. 

Judgments  and  executions. 

18. 

Estate  to  which  the 

lien  at- 

8. 

Judicial  and  execution  sales. 

t  aches. 

9. 

Lis  pendens  and  attachment. 

19. 

Limitation  of  lien. 

10. 

Decedent's  debts. 

20. 

Assignability. 

11. 

Taxes. 

21. 

Foreclosure. 

§  1.  Liens  generally.  A  lien  18  defined  as  a  hold  or 
charge  which  one  person  has  npon  the  property  of  another  as 
a  security  for  some  debt  or  cliarge,*  and  in  its  broad  sense 
would  coverall  burdens,  charges  or  incumbrances  placed  on 
land,  including  mortgages,  judgments,  taxes,  etc.,  as  well  as 
common  law  and  statutory  liens,  and  liens  arising  by  impli- 
cation of  law.  In  its  more  restricted  signification  it  is  used 
to  denote  certain  preferred  or  privileged  claims  given  by  stat- 
ute or  arising  by  implication  of  law,  and  indicates  a  mere 
right  to  hold  the  property  until  the  claim  has  been  satisfied. 
Even  in  this  latter  sense,  as  it  is  now  employed  in  conveyanc- 
ing and  the  compilation  of  abstracts,  its  popular  meaning  con- 
fines it  to  certain  classes  enumerated  by  statute;  as  the  lien 
of  mechanics  and  material  men,  attachment,  llspendens^^iQ..^ 
and  liens  arising  by  operation  of  law,  as  decedent's  debts, 
purchase  money  liens,  etc.  Liens  are  also  classified  as  legal 
and  equitable.  The  latter,  being  generally  unknown  to  the 
world,  and  frequently  operating  injuriously  on  the  rights  of 

1 2  Bou.  Law  Diet.  47. 

25  (385) 


386  ABSTRACTS    OF    TITLE. 

creditors  and  purchasers,  are  never  enforced  but  in  cases  where 
the  right  is  clearly  and  distinctly  made  out.^ 

§  2.  How  Created.  Liens  are  created  upon  lands  by  the 
statute,  to  secure  the  payment  of  taxes,  and  other  public 
debts;  to  protect  estates  raised  out  of  or  incident  to  the  mar- 
riage relation;  to  effectuate  the  judgments  of  courts  by  allow- 
ing the  land  of  the  defendant  to  be  taken  in  execution,  as 
well  as  to  anticipate  such  judgments  by  way  of  attachment 
and  lis  pendens,'  to  secure  the  payment  of  debts  of  deceased 
persons,  and  to  secure  the  wages  of  laborers  and  mechanics. 
They  are  also  created  by  the  direct  act  of  the  parties,  as  by 
leases,  mortgages,  etc.,  and  arise  iu  a  number  of  cases  by 
operation  or  in)plication  of  law,  as  to  secure  unpaid  purchase 
money,  etc.,  these  latter  being  known  as  equitable  liens.  In- 
tending purchasers  are  chargeable  with  notice  of  all  statutory 
liens,  tlie  provisions  of  the  statute  having  been  substantially 
complied  with,  but  will  take  the  land,  where  the  sale  is  made 
in  good  faith  and  for  value,  freed  from  the  burden  of  equi- 
table liens  of  which  they  had  no  notice. 

§  3.  Operation  and  Effect.  Unlike  a  conveyance,  a  lien, 
however  created,  confers  no  estate  in,  or  title  to,  the  property 
to  which  it  attaches,  and  may  be  discharged  at  any  time  be- 
fore foreclosure  by  the  payment  of  the  sum  for  which  the 
property  is  held. 

§  4.  Method  of  Arrangement.  Liens,  charges  and  incum- 
brances of  every  kind,  witli  but  one  exception,  are  shown,  not 
in  the  regular  course  of  title,  but  in  appendices  to  same,  and, 
for  better  convenience,  under  classified  heads.  The  exception 
is  in  case  of  mortgages,  which,  following  the  custom  which 
prevailed  when  such  instruments  were  conveyances  of  the 
legal  estate,  are  shown  in  regular  chronological  order  in  the 
chain.  This  arrangement  possesses  many  advantages  over 
any  other,  the  chief  one  being,  however,  to  preserve  the  sym- 
metry of  the  title,  which  enables  counsel  to  obtain  a  clearer 
view  of  same  than  could  possibly  be  obtained  were  the  liens 
and  charges  inserted  in  the  chain  in  their  order  of  time.     An 

iConoveri'.  Warren,  1  Gilm.  (111.)  498;  see  Walker  r.  Matthews,  58  IU.  196, 


LIENS,    CHARGES   AND    INCUMBRANCES.  387 

analysis  of  the  abstract  must  always  be  prepared  in  every 
lonuj  examination,  and  tlie  efFoct  of  liens  considered  with  ref- 
erence to  tlie  fee,  can  more  easily  be  determined  by  this  ar- 
rani^ement  on  the  compilation  of  such  analysis  than  if  they 
were  allowed  to  interfere  with  the  primary  questions  raised 
by  the  actual  conveyances.  These  points  will  be  more  fully 
demonstrated  in  treatini^  of  "  Opinions  of  Title." 

§  5.  Mortgages.  The  ancient  doctrine,  by  which  mort- 
gages were  regarded  as  conveyances  of  the  legal  estate,  no 
longer  obtains  in  the  United  States,  or  at  least  but  in  a  very 
modified  form,  while  in  a  majority  of  the  States  they  are  re- 
garded simply  as  liens  on  land  to  secure  the  payment  of  in- 
debtedness.' Considered  simply  as  liens,  they  might,  before 
default  or  foreclosure,  with  propriety,  be  shown  with  other 
liens,  and  it  is  the  custom  of  many  examiners  to  follow  this 
method  of  arrangement;  after  default  or  foreclosure  they  be- 
come essentially  muniments  of  title,  and  must  a]ipear  in 
regular  chronological  sequence.  ]\lortgages  followed  by  satis- 
faction are  but  dead  matter,  and  when  forming  part  of  the 
chain  are  positive  hindrances  in  passing  the  title;  such  mort- 
gages might  be  shown  in  appendices  under  the  head  of  "  satis- 
fied liens,"  the  main  object  being  simply  to  show  a  proper 
and  legal  release. 

§6.  Dower.  The  inchoate  right  of  dower,  during  the  life- 
time of  the  husband,  is  at  least  a  cloud  upon  the  title  in  the 
hands  of  the  husband's  alienee,  and  which,  in  the  event  of  his 
death  before  the  wife,  develops  into  a  positive  charge  upon  the 
land.^  In  the  first  event  it  is  hardly  a  lien,  while  in  the  latter 
it  is  more  than  a  lien,  but  in  both  instances  must  ordinarily 
appear  inferentially,  andean  not  be  shown  affirmatively  in  the 
abstract. 

>  See  Chap.  XXI.    OcloU  v.  Mont-  Mo.   284;    Actor  v.  Iloyt,  5  Wend, 

ross,  68  N.  Y.  499;    Govham  v.  Ar-  602;    Parsons  v.  Noggle,  23  Minn. 

nolcl,22Mich.  247;  White  v.Ritten-  328. 

meyer,  30  Iowa,  268;  Vason  v.  Ball,  ^  An  inchoate  right  of  dower  ont- 

56  Ga.  2G8;    Fletcher  v.   Holmes,  32  standing  is  a  defect  in  the  title,  and 

Ind.   497;    Carpenter  v.   Bowen,  42  an    incinnbrance  upon    the  estate: 

Miss.  28;    Woods  v.  Hildebrand,  -:6  Wright  v.  Young,  6  Wis.  127. 


3S8  ABSTRACTS    OF   TITLE. 

§  7.  Judgments  and  Eicecutions.  Judgments,  from  the 
time  of  their  rendition,  and  executions,  from  the  period  of 
issuance  or  levy,  create  statutory  liens,  which  necessitate  a  full 
exposition  in  the  abstract.  The  subject  is  reserved  for  ample 
treatment  in  a  subsequent  chapter. 

§  8.  Judicial  and  Execution  Sales,  The  purcliaser  of 
lands  sold  on  execution  acquires  by  his  purcliase  no  more  tlian 
a  lien  upon  the  lands  for  his  bid,  and  interest  during  the  pe- 
riod, if  any,  allowed  for  redemption.  He  does  not  obtain  the 
lei^al  title;  and  if  the  premises  are  subject  to  a  mortgai^e,  he 
does  not  become  the  owner  of  the  equity  of  redemption  until 
after  tlie  expiration  of  the  period  of  redemption.' 

§  9.  Lis  Pendens  and  Attachment.  A  pending  suit  con- 
veys notice  to  intending  purchasers,  and  charges  the  land,  in 
whosesoever  hands  it  may  be,  with  the  consequences  of  what- 
ever decree  may  be  made,  while  an  attachment  reserves  the 
land  to  satisfy  any  judgment  that  may  be  rendered  in  the  suit 
and  creates  a  lien  in  favor  of  such  judgment  in  advance  of  its 
rendition.  The  attachment  is  a  lien  from  the  time  of  the 
levy.^ 

§  10.  Decedent's  Debts.  The  debts  of  a  deceased  person 
are  a  lien  upon  the  lands  of  such  decedent  in  the  hands  of  his 
heirs  or  devisees,  and  the  lien  continues  until  paid  or  barred 
by  the  statute.  If  the  heir  aliens  the  lands,  the  alienee  holds 
tliem  subject  to  this  lien,  and  his  title  may  be  defeated  by  a 
subsequent  sale  by  the  administrator.^ 

§  11.  Taxes.  The  lien  of  tlie  State  for  taxes  attaches  to 
all  lands  subject  to  taxation  on  some  day  stated,  usually  the 
first  day  of  May  of  each  year,  and  every  person  owning  land, 
on  that  day  is  liable  for  the  taxes  due  thereon  for  the  year.* 
They  take  priority  of  all  other  liens  under  the  principles  aj)- 

^Vauglian  v.  Ely,    4   Bavb.   159;  see  Rosenthal  v.  Renick,  44  111.  202. 

Farmers  Bank  of    Saratoga  v.  Mer-  *Alray  t?.  Hunt,  48   111.   45.     The 

chant,  13  How.  (N.  Y.)  10,  date  of  the  commencement  of  the 

^Martin  v.  Dr^^den,  1  Gilm.  (Ill-)  lien  has    reference    to    the  day  on 

187.  which  the  citizen  is  compelled  to  list 

^Vansyckle  v.  Richardson,  13  lU.  his  land  for  taxation. 
171;  Hill  V.   Treat,  67  Me.  501;  and 


LIENS,    CHARGES    AND    INCUMBRANCES.  3S9 

plicable  to  the  prerogatives  of  sovereignty.'     The  subject  will 
be  fully  discussed  further  on. 

§  12.  Municipal  Liens.  Liens  may  be  created  upon  the 
lands  of  individuals  and  corporations  by  ordinances  of  cities 
for  municipal  expenses:  lighting,  cleaning  or  repairing 
streets;  public  improvements,  etc.  All  questions  relative  to 
the  effect  of  municipal  ordinances  considered  as  liens,  are 
local  and  statutory. 

§  13.  Official  Bonds.  A  peculiar  class  of  liens  arises  in 
many  States  from  official  bonds,  which  are  declared  to  be  liens 
on  all  the  real  estate  held  jointly  or  severally  by  the  officers 
giving  same,  from  the  time  of  filing  same  until  such  officers 
shall  have  been  honorably  discharged  from  their  trusts. 
These  bonds  are  most  frequently  required  from  collectors  of 
taxes,  and  it  would  seem,  that  where  any  of  the  parties  vend- 
ors named  in  the  abstract,  during  the  period  in  which  an  ac- 
tion may  be  brought  on  an  official  bond,  have  held  this  posi- 
tion, or  have  been  a  surety  for  any  such  officer,  an  examina- 
tion should  be  made  for  liens  of  this  nature.  As  the  bonds 
are  required  to  be  filed  or  recorded  in  some  of  the  designated 
public  offices  of  the  county,  the  files  or  records  should  be 
regularly  inspected  as  often  as  occasion  may  require,  and  ref- 
erences obtained  to  the  information  thereby  disclosed.  The 
indices  to  the  information  thus  obtained  may  consist  of 
special  volumes,  but  a  better  way  is  to  post  same  in  the  "  ir- 
regular "  index  where  the  names  of  the  bounden  individuals 
will  always  be  found  when  compiling  the  chain.  Usually 
where  a  bond  has  the  effect  of  a  lien,  the  principal  and  his 
sureties  are  entitled  to  have  a  discharge  entered  whenever  the 
operation  of  the  bond  has  ceased,  and  where  the  obligation  is 
discharged,  by  proper  entries,  it  may  be  disregarded  in 
making  up  the  abstract.  Wliere  the  bond  isa])]iarently  a  sub- 
sisting lien,  it  must  be  shown  in  the  same  manner  as  other 
liens.  In  abstracting  these  bonds,  the  general  form  already 
given  may  be  followed,  the  essential  particulars  being  the 
parties,  penalty  and  condition  of  the  obligation,  which  should 

»  Dunlap  V.  Gallatin  Co.,  15  111.  7;  Dennis  r.  Maynanl,  15  111.  477. 


390  ABSTKACTS    OF    TITLE. 

be  fully  stated.'  It  has  been  lield  that  the  statutory  lien  cre- 
ated by  giving  an  official  bond  does  not  in  any  way  aifect  the 
liomestead  of  the  person  giving  same.^ 

§  14.  Leases.  A  lease  is  rather  in  the  nature  of  a  charge 
or  incumbrance  on  the  fee  than  a  lien.  It  confers  a  right  of 
possession,  according  to  its  import,  to  the  exclusion  of  the 
owner  of  the  fee  or  reversion.  Considered  in  this  light,  and 
it  can  be  viewed  in  no  other,  it  does  not  properly  come  within 
the  chain  of  title,  but  is  appended  to  it,  and  should  be  shown 
in  the  abstract  after  the  course  of  title  has  been  traced.  AVhen 
exhibited  in  its  proper  order  of  time  as  a  part  of  the  chain  it 
mav,  perhaps,  be  more  readily  considered  with  respect  to  its 
eifect  on  subsequent  conveyances,  but  it  is  the  experience  of 
the  writer  that  correct  estimates  of  title  are  more  easily  and 
correctly  ai-rived  at  by  keeping  the  fee  disassociated  with  all 
minor  estates.  The  better  plan  therefore  seems  to  be  to  show 
leases  among  the  appendices,  and  should  the  term  extend 
over  a  long  period  of  time,  with  numerous  assignments  or 
transfers  of  any  interest  less  than  the  term,  to  trace  the  lease- 
hold in  a  separate  chain,  with  proper  subheadings  indicating 
the  purport  of  the  search. 

§  15.  Vendor's  Liens.  Where  there  is  an  express  reserva- 
tion made  in  a  deed  of  the  lien  of  the  vendor,  this  is  equiva- 
lent to  a  mortgage  taken  for  the  purchase  money  contempo- 
raneously with  the  deed.  The  purchaser  has  the  equity  of 
redem]ition  precisely  as  if  he  had  received  a  deed  and  given 
a  mortgage  for  the  purchase  money,  and  he  has  the  right  to 
redeem.^  But  in  addition  to  this  there  is  a  recognized  lien  of 
the  vendor  for  unpaid  purchase  money,  which  is  not  based  upon 
contract;  nor  is  it  an  equitable  mortgage  or  resulting  trust, 
but  an  equity  which  is  raised  and  administered  by  the  courts, 
who  enforce  or  deny  it  as  the  merits  of  each  particular  case 

^  As  to  the  nature,  eifect  anrl  con-  111.  394. 

struction  of  official  bonds,  considered  ^  King  v.  Y.  M.   Assn.,  1  Woods, 

in  their  relation  to  real  estate,    con-  386;    Smith  v.   Rowland,    18  Kan. 

suit  Richeson  v.  Crawford,   94  111.  245;   Carpenter  v.  Mitchell,    54  111. 

165.  126. 

2  Trustees  of  School  v.  Hovey,  94 


LIENS,    CHARGES    AND    INCUMBRANCES.  391 

may  seem  to  demand.  It  is  never  allowed  to  override  or  take 
priority  of  equities  or  rii^hts  of  third  persons,  which  have 
attached  in  ignorance  of  such  vendor's  equit\',  and  is  not  in 
this  respect  like  a  mortgage,  or  any  otlier  lien  created  by  ex- 
press contract,  or  even  by  statute/  Fnder  the  application  of 
this  doctrine  a  purchaser  is  not,  in  equity,  the  owner  ad- 
versely to  the  lien  of  his  vendor,  but  is  treated  as  a  trustee 
for  him  until  the  purchase  money  is  paid.  The  vendor's  lien 
exists  against  such  purchaser,  and  against  volunteers  and  pur- 
chasers under  him,  with  notice  of  his  having  an  equitable 
title  only,^  or  with  notice  of  the  vendor's  et^uitable  lien.'  A 
vendor's  lien  is  personal  in  its  nature  *  and  is  raised  l)y  con- 
struction of  equity  in  favor  of  the  vendor  onlj'.*  It  is  not  a 
matter  of  sale  and  can  not  be  assigned,  even  by  express  lan- 
guage, with  the  note  taken  for  the  purchase  money,®  and  an 
assignment  of  the  notes  will  extinguish  the  lien,^  as  will  also 
the  taking  of  a  distinct  and  independent  security.*  As  a 
vendor's  lien  is  secret,  unknown  to  the  world,  and  often  pro- 
ductive of  harm,  it  will  not  be  extended  beyor.d  the  require- 
ments of  the  settled  principles  of  equity,  and  such  liens  are 
not  encouraged    by   the  courts.' 

§  16.  Mechanic's  Liens.  A  mechanic's  lien  is  the  creature 
of  statute,  and  depends  solely  for  its  validity  upon  the  act 
creating  it.  The  act  is  an  innovation  upon  the  common  law 
affecting  pro})erty  and  rights  of  property,  authorizing,  as  it 

» Allen  V.  Loring,  34  Iowa,  499;  ^Hect   v.    Spears,    27   Ark.  229; 

Swan  V.  Benson,  31  Ark.  728;  Moody  Markoe  v.  Andras,  67  111.  34.     But 

V.  Fislar,    55   Ind.  592;  Moshier  v.  see  contra.  Bill  v.  Mason,  42  Iowa, 

Meek,  80  111.  79.  330. 

2  Walton  V.   Hargroves,  42  Misa.  '  Pillow  r.  Helm,  7  Baxter  (Tenn.), 

18;  Burch   v.   Carter,   44   Ala.  115;  545;  High'ower  v.  Rigsby,  .50  Ala. 

Swan  V.  Benson,  31  Ark.  728;  Harsh-  12G;  Bonnell  v.  Holt,  89  ill.  71. 
barger  v.    Foreman,    81    111.    M64;  *  Anderson   v.    Donnell,    66    Ind. 

Madden  v.   Barnes,    45   Wis.    135.  150;  Stuart  v.   Harrison,   52   Iowa, 

^Giaves  v.  Coutant,  31  N.  J,  Eq.  511;   Neal  v.  Speigle,  3^3  Ark.   6^3; 

763;  Wilson  v.  Lyon,  51  111.  166.  Stevens  r.  Rainwater,  4  Mo.   App. 

*  Jones  V.  Doss.  27  Ark.  518;  Bow-  292;  C-.wl  v.  Varnum,  37  111.  181. 
linr.  Pearson,  4  Baxter  (Tenn.),  341.  "Cowl   r.    Varnum,    :37    111.    181; 

^Lindsey  v.  Bates,  42  Miss.  397;  Doolittle  v.  Jenkins,  55  111.  400. 
Small  V.  Stagg,  95  111.  39. 


392  ABSTKACTS   OF   TITLE. 

does,  property  to  be  encumbered  without  or  against  tlie  con- 
sent of  the  owner,  and  without  a  resort  to  legal  process  or 
judicial  action.  Such  an  act  can  not  be  extended,  in  its  opera- 
tion and  effect,  beyond  the  fair  and  reasonable  import  of  the 
words  used;  and  whoever  asserts  the  lien  must  bring  them- 
selves within  its  terms,  and  the  lien  must  be  shown,  not  only 
to  have  been  regular  and  valid  in  its  inception,  but  to  be  a 
continuing  and  existing  lien  under  the  statute.*  The  design 
of  the  law  is  to  protect  the  mechanic,  laborer,  and  material 
man  to  the  extent  of  services  performed  or  materials  fur- 
nished. The  lien  is  absolute  to  the  extent  of  the  owner's  in- 
terest in  the  premises,  and  can  not  be  divested  by  a  sale  or 
transfer  of  same,  after  the  commencement  of  performance  of 
the  contract.^ 

§  17.  Priority.  Being  dependent  on  the  statute  for  its 
force  and  extent,  no  general  rule  can  be  asserted  in  regard 
to  the  priority  of  mechanic's  liens.  They  usually  take  pre- 
cedence of  mortgages  given  after  the  commencement  of 
the  work,  but  as  between  mechanics  there  can  be  no  priority.^ 
"Where,  however,  a  mortgage  or  other  lien  takes  effect  after 
the  commencement  of  one  or  more  mechanic's  liens,  but  be- 
fore the  commencement  of  others,  the  latter  must  be  post- 
poned to  the  mortgage  lien.*  As  between  a  lien  upon  an  equi- 
table interest  and  one  upon  a  full  legal  title,  the  latter,  though 
subsequent  in  time,  may  be  preferred  to  the  former,  if  the 
holder  thereof  be  an  innocent  and  honafide  holder  without 
notice.^  Mechanics  and  laborers  asserting  a  lien  upon  real 
property  for  their  work,  and  claiming  priority  over  mort- 
gagees and  others  who  have  acquired  interests  in  the  property, 
must  furnish  strict  j^roof  of  all  that  is  essential  to  the  lien,® 
but  of  what  these  essentials  consist,  local  law  must  decide. 
In  abstracting  the  petition,  notice  or  other  preliminary  meas- 

iMushlittw.  Silverman,  50  N.  Y.  ^In  re  Hoyt,  3  Biss.  436;  Thiel- 

360;    Dinkins  v.   Bowers,   49  Miss.  man  ».  Carr,  75  III .  385 ;  Powder  Co. 

219;  Kothgerber  v.   Dupy,     64   lU.  v.  Loomis,  2  Disney  (Ohio),  544. 

452.  *  Powder  Co.  v.  Loomis,  2    Disney 

^Mehan  v.  Williams,  2  Daly  (N.  (Ohio),  544. 

Y.),  367;  Dunkleer. Crane,  103  Mass.  ^  Jones  »,  Lapham,  15  Kans.  540. 

470;  ^fhielman  v.  Carr,  75  lU.  385.  ^  Davis  v.  Alvord,  94  U.  S.  545. 


LIENS,    CHARGES   AND    INCUMBRANCES.  393 

lire,  the  examiner  will  consult  the  statute  and  observe  that  all 
its  material  requirements  are  com])lied  with. 

§  18.  Estate  to  which  the  Lien  Attaches.  To  render  the 
lien  effective,  and  afford  protection  to  the  artificer  in  every 
possible  case,  it  is  permitted  by  statute  to  extend  to  either  an 
estate  in  fee,  for  life,  for  years,  or  any  other  estate,  or  any 
right  of  redem])tion  or  other  interest  which  such  owner  may 
have  in  the  land  at  the  time  of  making  the  contract,  and 
whatever  right  or  estate  such  owiu'r  had  at  that  time  may  be 
sold  in  satisfaction  of  the  lien.^  But  tlie  lien  affects  only  the 
title  of  the  person  contracting,^  and  where  such  person  pos- 
sesses only  an  equitj^  the  legal  title  is  not  impaired.^  It  can 
not  extend  to  affect  or  impair  the  right  of  dower;*  nor  the  es- 
tate or  title  of  an  infant;^  nor  tlie  title  to  the  fee  or  reversion, 
when  tlie  contracting  party  is  only  a  tenant  for  life  or  years;* 
nor  the  property  of  a  third  parry  in  the  temi)orary  use  of  an- 
other;' nor  the  se])arate  property  of  a  married  woman,  where 
the  contract  is  made  without  her  knowledge;*  nor  will  it  ex- 
tend against  the  property  of  the  State.^  The  lien  extends  to 
the  property  of  a  decedent,  and  may  be  enforced  against  the 
land  in  possession  of  the  heirs,  ])ut,  it  seems,  can  not  be 
made  a  personal  liability  against  them."^ 

J  Kidder  V.   Aholtz,   36  111.   478;  45  N.  Y.  207. 

Donaldson  r.  Hohiies,  23  111.  85.  ^ Tracy   v.   Rogers,    69    111.    6G2; 

2  Hickox  V.  Greenwood,  94  111.  266.  Tha.\ter  v.  Williams,  14  Pick.  49. 

^McCarty  v.  Carter,  49  111.  53;  *  Flannery  r.  Rohrmayer,  4(3  Conn. 
Hickox  V.  Greenwood,  94  111.  266;  558.  Otherwise  whore  such  married 
Craig  V.  Swinerton,  15  N.  Y.  Sup.  woman  had  personal  knowledge  of 
Ct.  144;  Hayes  v.  Fessenden,  106  the  work,  or  gave  directions  con- 
Mass.  228;  Hallahan  v.  Herbert,  11  cerning  it:  Collins  r.  IVIegraw,  47 
ALbb.  ( N.  Y.)  Pr.  (N.  S.)  326;  Knapp  Mo.  495,  or  the  materials  were  fur- 
V.  Brown,  45  N.  Y.  207.  nished  at  her  request,  or  had  her  ap- 

*  Grove  v.  Cather,  23  111.  634.  proval:  Greenleaf  v.  Bebee,   80  III. 

^  McCarty  v.  Carter,  49  111.  53.  520. 

fi Knapp  V.  Brown,  45  N.  Y.  207;  'Thomas  v.  Industrial  University, 

McCarty  v.  Carter,  49  111.  53;  Fran-  71   111.   310;   RipU-y  r.  Gage  Co.,  3 

cis    V.  Sayles,    101   Mass.   435;  and  Neb.  397;  Panohi  Co.  Sup.  v.  Gillen, 

this  even  though  the  lessee  is  bound  59  Miss.  198. 

to   make  improvements   and    leave  '"MoGrow    v.    McCarty,    78   Ind. 

thorn  on  the  promises  at  the   expira-  496. 
tion  of  the  term:     Knapp  v.  Brown, 


39i  ABSTRACTS    OF    TITLE. 

§  19.  Limitation  of  Lien.  It  is  difficult  to  formulate  a 
statutory  rule  that  shall  be  of  general  application,  and  par- 
ticularly in  so  technical  a  matter  as  mechanic's  liens.  No 
lien  is  given  in  any  of  the  States  unless  steps  are  taken  to  se- 
cure and  perfect  it  within  a  specified  period,  nsually  six 
months  or  one  year  from  the  time  of  the  last  charge  for  per- 
formance of  work  or  furnishing  of  materials,  and  in  some 
States,  there  is  a  special  limitation  with  respect  to  the  com- 
mencement of  the  work;  as,  when  tlie  contract  is  expressed, 
no  lien  is  created  if  the  tiine  stipulated  for  the  completion 
of  the  work  is  beyond  three  years  from  the  commencement 
thereof,  or  the  time  of  payment  beyond  one  year  from  the 
time  stipulated  for  such  completion.  Where  tlie  contract  is 
implied,  no  lien  is  given  nnless  the  work  shall  have  been  done 
or  the  materials  furnished  within  one  year  from  the  commence- 
ment of  the  work  or  delivery  of  materials.  The  petition  for 
the  enforcement  of  this  lien  must  state  everything  neces- 
sary to  show  a  due  compliance  with  the  statute,^  and  such 
parts  as  specifically  relate  to  the  demand;  the  contract  upon 
which  it  is  founded;  the  dates  of  performance;  the  amount 
due;  and  the  specific  property  which  is  sought  to  be  encum- 
bered, together  with  other  material  facts  in  relation  thereto, 
must  be  shown  carefully  and  in  detail,  that  counsel  may  see 
from  inspection  whether  all  the  conditions  necessary  to  create 
the  lien  are  stated  and  all  statutory  requisites  complied  with. 
Unless  the  petition  shows  on  its  face  a  contract  within  the 
statute,  no  lien  will  result.^ 

§  20.  Assignability.  The  lien  given  by  the  statutes  is,  in 
general,  a  personal  right  given  to  the  mechanic,  material  man 
and  laborer  for  his  own  protection,  and  the  right  can  not  be 
assigned  or  transferred  to  another,^  unless   the  assignment  is 

1  Mushlitt  V.  Silverman,  50  N.  Y.  Rowley  v.  James,  31  111.  298;  Val- 
360;  Dinkins  v.  Bowers,  49  Miss.  entine  v.  Rawson,  57  Iowa,  179;  and 
219;  Rothgerber  t).  Dupy,  64  Ills.  see  Hammond  tJ.  Wells,  45  Mich.  11; 
452;  Davis  v.  Alvord,  94  U.  S.  545;  Treusch  v.  Shryock,  55  Md.  330. 
Valentine  r.  Rawson,  57  Iowa,  179;  ^Caldwell  v.  Laminer,  10  Wis. 
Conroy  v.  Perry,  26  Kansas,  472;  332;  Pearsons  v.  Tincker,  36  Me. 
Rugg  V.  Hoover,  28  Minn .  404.  384. 

2  McClurken  v.  Logan,  23  111.  79; 


LIENS,    CIIAKGES    AND    INCUMBRANCES.  395 

made  for  the  benefit  of  the  assig-nor,  and  to  be  hehl  as  his 
agent,  so  that  tlie  lien  may  be  preserved.'  In  some  States, 
the  lien,  while  not  assignable,  will  pass  as  an  incident  to  the 
debt.^ 

§  21.  Foreclosure  of  Lien.  The  lien  given  by  statute  is 
not  susce])tible  of  samniarj  enforcement,  but  must  be  prose- 
cuted by  action  of  an  equitable  nature,  and  where  the  lien  is 
finally  satisfied  by  sale  under  a  decree,  all  the  intermediate 
steps  should  be  succinctly  stated  to  show  a  complete  divesture 
of  title  under  the  statute.  The  right  of  redemption  does  not 
follow  a  sale  under  a  decree  to  satisfy  a  mechanic's  lien,  in 
many  of  the  States,  and  as  the  proceedings,  in  this  respect,  are 
of  a  summary  nature,  it  is  essential  that  in  all  such  instances 
more  than  ordinai-y  care  be  taken  in  the  synopsis. 

'  McComliie  t'.  Davis,    7  East,  5;  ^  Brown  v.  Smith,  55  Iowa,  31. 

RoUin  V.  Cross,  45  N.  Y.  766. 


CHAPTEK  XXy. 

LIS  PENDENS  AND  ATTACHMENT. 

§  1.  Doctrine  of  lis  pendens.  in  question. 

2.  Continued— etfect  of  dismissal.  §  5.     Attachment. 

3.  Notice  lis  pendens.  6.     Formal    requisites   of   attach- 

4.  Property    drawn    incidentally  ments. 

§  1.  Doctrine  of  Lis  Pendens.  It  is  a  rnle  in  eqilit}'', 
long  established  and  acted  on,  that  a  purchase  made  of  prop- 
erty actually  in  Vitlgntion  petidente  lite,  although  for  a  valu- 
able consideration  and  without  any  express  or  implied  notice, 
affects  the  purchaser  in  the  same  manner  as  if  he  had  such 
notice,  and  he  will  accordingly  be  bound  by  the  judgment  or 
decree  in  the  suit.  "This  rule  is  said  to  rest,"  observes  Earl, 
C,  "  upon  the  presumption  that  every  man  is  attentive  to 
what  passes  in  the  courts  of  justice  of  the  State  or  sover- 
eignty where  he  resides,  and  to  be  founded  on  public  policy; 
for  otherwise  alienations  and  transfers  of  title  made  during 
the  pendency  of  a  suit  might  defeat  its  whole  purpose,  and 
there  would  be  no  end  to  litigation."  ^  "  A  suit  in  chancery," 
says  Depere,  J.,^  "  duly  prosecuted  in  good  faith,  and  followed 
by  a  decree,  is  constructive  notice  to  every  person  who  ac- 
quires from  a  defendant ^e^icZe/i^g  lite,  an  interest  in  the  sub- 
ject-matter of  the  litigation,  of  the  legal  and  equitable  rights 
of  the  plaintiff  as  charged  in  the  bill  and  established  by  the 
decree.  This  effect  of  a  successful  litigation  in  subordinating 
the  title  of  a  purchaser  pending  a  litigation,  to  the  rights  of  the 

•Leitchr.  Wells,  48  N.   T.  585;      v.  McLaren,  4  Cow.  667;    Miller «. 
Story's  Eq.  Jur.    §  405;  Jackson  v.      Sherry,  2    Wall.  (U.  S.)  237;  Jack- 
Andrews,  7  Wend.  152;    Hayden  v.      son  v.  Warren,  32    111.  331. 
Bucklin,  9    Paige,    572;    Green  v.  ^  Green  v.  Slayter,  4  Johns.  Ch. 

Slayter,   4  Johns.  Ch.  38;     Hopkins      38. 

(396) 


LIS    TENDENS    AND    ATTACHMENT.  397 

plaintiff  as  establislied  in  the  suit,  is  not  deriv'ed  from  legisla- 
tion. It  is  a  doctrine  of  courts  of  equity  of  ancient  origin 
and  rests  not  upon  the  principles  of  the  court  with  regard  to 
notice,  but  on  the  ground  tliat  it  is  necessary  to  the  adminis- 
tration of  justice  that  tlie  decision  of  the  court  in  a  suit  should 
be  binding  not  only  on  the  litigant  parties,  but  also  upon 
those  who  acquire  title  from  them  during  the  pendency  of  the 
suit.  Such  a  purchaser  need  not  be  made  a  X)arty,  and  will 
be  bound  by  the  decree  which  shall  be  made."  ^  Tiie  doc- 
trine of  lis  pendens  applies  only  where  a  third  person  attempts 
to  intrude  into  a  controversy  by  acquiring  an  interest  in  the 
subject-matter  of  the  litigation,  and  the  reason  of  the  rule  is, 
saj^s  Chancellor  Kent,  "  that  if  a  transfer  of  interest  pending 
a  suit  were  to  be  allowed  to  atfect  the  proceedings,  there 
would  be  no  end  to  litigation;  for  as  soon  as  a  new  party  was 
brought  in,  he  might  transfer  to  another,  and  render  it  neces- 
sary to  bring  that  other  before  the  court;  so  that  a  suit  might 
be  interminable."^  It  will  be  understood,  however,  that  the 
rule,  that  a  party  ^\\VQ\\?^%mg pendente  lite  is  to  be  regarded 
as  a  purchaser  with  notice,  subject  to  all  the  equities  of 
the  person  under  whom  he  claims,  and  bound  by  the  de- 
cree that  may  be  made  against  the  person  from  whom  lie 
derives  title,  applies  only  to  cases  in  which  such  purchaser 
derives  title  from  one  of  the  parties  litigant.  If  he  claims 
adversely  to  both  parties  by  title  paramount,  the  proceedings 
to  which  he  is  neither  party  nor  priv^y  can  not  bind  him.'' 

§  2.  Continued — Effect  of  Dismissal.  Where  a  suit  at 
law  is  dismissed,  or  the  plaintiff  suffers  a  non-suit,  or,  if  in 
chancery,  the  bill  is  dismissed  for  want  of  ])rosecution,  or  for 
any  other  cause  not  on  the  merits,  although  in  all  such  cases 
a  new  action  could  be  brought,  it  would  not,  it  seems,  affect 
the  purchaser  during  the  pendency  of  the  first  suit;  and 
where  a  suit  is  dismissed  and  afterward   reinstated,  the  duc- 

'  Hangliwout  v.  Murphy,  7   C.  E.  496. 

Green  (N.  J.),    5:51;   2  Story's    Eq.  ^  ji^rry  t'.  Lyburn,  2    Johns.  Ch. 

Jur.,  §  908;      Murry  v.  Lybiirn,  2  444. 

Johns.  Ch.  444;  Dickson  v.  Todd,  43  » Allon  v.  Morris.  84  N.  J.  L.  159; 

III.  405;  Alwood  V.  Mansfield,  59  111.  Scariott  v.  Gurham,  28  ill.  319. 


39S  ABSTRACTS    OF   TITLE. 

trine  of  lis  jpendens  is  not  applicable  to  one  who  pnrcliasea 
after  the  dismissal  and  before  the  revival  of  the  suit/ 

§  3.  Notice  Lis  Pendens.  Tliis  common  law  rule  of  re- 
quiring purchasers,  at  their  peril,  to  take  notice  of  tlie  pen- 
dency of  suits  in  courts  of  justice  for  the  recovery  of  the 
property  they  are  about  to  purchase,  although  it  is  really  im- 
possible that  they  should  actually  know  that  such  suits  have 
been  commenced,  has  always  been  considered  a  hard  rule,  and 
is  by  no  means  a  favorite  with  the  courts.'^  It  has  always 
been  considered  a  very  harsh  rule  in  its  application  to 
honafide  purchasers  for  value,  and  has  only  been  tolerated  by 
learned  judges  from  a  supposed  necessity.  In  the  absence  of 
statutory  provisions  to  the  contrary,  the  bill  is  itself  a 
sufficient  notice  to  the  world,  so  as  to  defeat  the  transfer  of 
property  hy  the  defendant,  made  subsequent  to  its  filing;*  but 
in  a  large  number  of  the  States,  particularly  where  the  N.  Y. 
code  has  been  followed,  a  material  change  has  been  made  in 
this  rigorous  rule,  which  provides  that  the  pendency  of  a  suit 
shall  not  be  notice  to  a  stranger  until  a  notice  of  lis  pendens 
has  been  filed  in  the  office  of  the  recorder  of  deeds,  or  clerk's 
office,  of  the  county  wdiere  the  land  is  situated,  and  that  as  to 
one  having  no  actual  notice,  he  may,  in  good  faith,  and  for  a 
valuable  consideration,  acquire  a  good  title  until  such  notice 
is  filed.*  The  lis  pendens  in  this  case  would  take  efi'ect  as 
notice  in  the  same  manner  as  attachments.  Where  the  suit  is 
pending,  and  before  the  bill  or  complaint  has  been  filed,  the 
notice  will  best  be  shown  by  way  of  appendix  the  same  as 
attachments,  but,  where  the  abstract  gives  a  synopsis  of  the 
proceedings  then  had,  its  orderly  arrangement  would  be  to 
precede  the  synopsis.  After  decree  it  appears  only  as  an  un- 
important incident  and  is  mereW  alluded  to  in  making  the 
chain.     The  form  and  substance  of  the  notice,  as  well  as  the 

1  Herrington  v.  McCollum,  73  111.  Ill  508. 

476.  "See  N.  Y.   Code,   §  182.    This 

^Hayden  v.  Bucklin,  9  Paige,  572.  section  has  been  very  generally  re- 

^  Parkinson  v.  Trousdale,  3  Scam.  enacted  in  all  States  having  a  code 

(111.)  367;  Vanzant  v.  Vanzant,  23  practice. 

Ill,  5:J6j  Davis  v.  Life  Ins.  Co.,  84 


LIS   PENDENS    AND    ATTACHMENT.  399 

validity  and  effect  of  same,  are  matters  of  local  practice  and 
construction,  but  tlie  following  will  serve  as  an  example  in 
abstj'acting: 

Circuit  Court  for  Kenosha  Connty. 
John  Doe  )       Notice  Lis  Pendens. 

ag.st.  >      Dated  March  1,  1SS3. 

Richard  Roe.  )       Recorded  March  ^,  1883. 

Vol.  25,  page  500. 
Recites,  that  an  action  entitled  as  above,  has  heen  com- 
menced in  the  alove  named  court,  and  is  noio  pending  therein, 
on  complaint  of  above  named  plaintiff  against  above  named 
defendant,  for  \Jiere  set  out  the  object  of  the  action  as  stated; 
as,  the  foreclosure  of  a  mortgage,  dated  June  10,  1880,  exe- 
cuted by  said  Richard  Roe,  to  said  John  Doe,  and  recorded 
in  volume  10,  lyage  85,  and  covering  the  following  described 
premises,  to  v:it:  here  set  out  the  description  as  stated]. 

§  4.  Property  dra-wn  Incidentally  in  Question.  Where  tlie 
rule  of  lis  pendens  in  its  original  shape  is  still  retained,  the 
authorities  are  generally  unanimous  in  declaring  it  to  apply 
only:  first,  where  the  litigation  shall  be  about  some  specific 
thing  which  must  be  necessarily  affected  by  the  termination 
of  tlie  suit;  and  secondly,  that  the  specific  property  must  be 
so  pointed  out  by  the  proceedings  as  to  warn  the  whole  world 
that  they  meddle  with  it  at  their  peril.'  Under  the  applica- 
tion of  these  principles,  it  has  been  held  by  an  almost  in- 
variable uniformity  in  the  decisions  on  the  subject,  that  the 
rule  does  not  apply  to  proceedings  in  suits  which  are  in  p>er- 
sonaml^  The  question  arises  frequently  in  suits  for  divorce 
and  in  which  the  wife  seeks  to  have  a  certain  subsistence 
secured  to  her  out  of  the  estate  of  her  husband,  and  while  the 
general  prayer  is  not  sufficient  to  subject  the  property  of  the 
husband  to  the  application  of  the  rule,  it  seems  that  where 
specific  property  is  incidentally  drawn  in  question,  eitlier  by 
recitals  of  the  bill  or  orders  of  the  court,  such  a  lis  pendens 
is  created  as  will  bind  a  \\\\\Q.\\i\iQT  pend elite  lite.^ 

^  Froenian  on  Jiidg'ts,  196;  Green  v.  Brlfrlitman,  1  R.  T.  112. 

V.  Slayter,  4  Johns.  Ch.  ;]8.  Mslcrr.    Brown,    66   N.    C.    5o6; 

^1  Story  Eq.  Jur.,  §  196;  Almond  Duniel  v.  Hodges,  15  Reporter,  534. 
V.  Almond,  4  Rand,  662;  Brightman 


400  ABSTRACTS   OF   TITLE. 

§  5.  Attachment.  The  office  of  an  attachment  is  simply 
to  secure  to  the  creditor  the  property  which  tlie  debtor  has  at 
tlie  time  it  is  made,  so  tliat  it  may  be  seized  and  levied  upon 
in  satisfaction  of  the  debt,  after  judgment  and  execution  may 
be  obtained.^  It  creates  no  estate  in  favor  of  the  person  at 
whose  instance  the  attachment  issued,^  and  does  not  change 
or  alter  tlie  estate  of  the  defendant  debtor.'  It  places  no  im- 
pediment on  the  power  of  alienation/  nor  will  it  affect  prior 
honajide  liens  that  may  have  been  placed  upon  it.*  It  does 
create,  however,  a  lien  which  nothing  but  the  dissolution  of 
tlie  attachment  can  destroy,"  and  every  person  into  whose 
hands  the  property  may  come,  takes  it  charged  with  this  lien, 
and  subject  to  all  the  rights  of  the  attaching  creditor  to  have 
the  property  seized  and  sold  on  execution  for  the  satisfaction 
of  his  debt.''  An  attachment  can  operate  only  upon  the 
right  of  the  debtor  existing  at  the  time  it  was  made,  and  no 
interest  subsequently  acquired  by  the  debtor  can  in  any  man- 
ner be  affected  by  the  return  thereof,  when  none  was  in  him 
at  the  time.*  Being  in  derogation  of  the  common  law,  an  at- 
tachment is  dependent  entirely  upon  the  statute  for  its  va- 
lidity and  effect,  and  must  conform  to  its  requirements  in  all 
essential  particulars.' 

§  6.  Formal  Requisites  of  Attachment.  Though  the  remedy 
by  attachment  is  purely  statutory,  and  while  there  exists  in 
many  particulars  a  wide  dissimilarity  between  the  attachment 
acts  of  the  several  States,  there  is  yet  a  marked  uniformity  in 
the  general  steps  that  must  be  pursued  to  render  it  available, 
and  its  effect  in  all  the  States  is  nearly  identical.  The  suit  is 
instituted  by  the  filing  of  a  statutory  affidavit,  and  is  fol- 
lowed by  the  writ  and  levy,  which  is  ordinarily  accomplished 
by  filing  a  certificate  of  same  with  the  recorder  of  deeds,  the 

1  Crocker  v.  Pierce,  31  Me.  177.  ^  Husbands  v.  Jones,  9  Bush  (Ky.), 

^Goddard    v.  Perkins,   9    N.    H.  218. 
488;  Foulks  V.  Peg-g,  6  Nev.  136.  ^  g^-iit^  j^,,  Bradstreet,  16  Pick.  264; 

^Bigelowf.  Wilson,  1  Pick.  485;  Hannahs  v.  Felt,  15 Iowa,  141. 
Blake  V.  Shaw,  7  Mass.  505;  Merrick  '  Randolph  i\  Carlton,  8  Ala.    606. 

V.  Hutt,  15  Ark.  331.  «  Crocker?'.  Pierce,  31  Me.  177. 

*  Warner   v.  Everett,   7  B.    Men         ^  May  v.  Baker,  15  111.   89;   Hay- 

(Ky.)  262.  wood  v.  Collins,  60  111.  328. 


LIS    PENDENS    AND    ATTACHMENT.  401 

property  being  bound  from  tlie  time  of  sucli  filing.*  In  pre. 
]>uring  the  absti-act  the  certificate  of  levy  would  probably  be 
all  that  is  required  to  furnish  a  notice  lis  pendens,  but  in 
practice  it  is  customary  also  to  show  a  brief  synopsis  of  tlie 
court  proceedings,  and  this  is  the  better  practice,  as  counsel 
not  infrequently  desires  same  as  a  reference  or  index,  as  well  as 
to  see  that  the  formal  steps  have  been  properly  taken.  Neither 
in  this,  nor  in  other  cases  where  court  proceedings  are  shown, 
is  it  customary  to  give  more  than  brief  references,  or  state- 
ments of  steps  taken,  and  where  greater  detail  is  desired  it 
is  obtained  by  a  transcript  of  the  record  and  papers,  or  by 
personal  inspection  of  the  riles.  An  abstract  entry  of  an  at- 
tachment showing  the  court  proceedings  and  sherilY's  certifi- 
cate of  lev^y  is  appended  and  will  illustrate  the  method  just 
described: 

Liens  and  Lis  Pendens. 


Ln  Superior  Court  of  Cook  County,  Ills. 
William  R.  Smith  \      Case  No.  89,928. 
vs.  y     Attachment. 

John  Savage.       )      Affidavit  and   hond  filed.,   and  xorit 

issued  May  23,  188 L 
Returned  levied  May  23,  1881.,  upon  all  the  right,  title 
and  interest  of  above-named  defendant  in  and  to  the  follow- 
ing described  real  estate,  to  wit:   \Ilere  set  out  the  property 
as  returned.'] 

No  personal  service:  Notice  hy  p)iillication.  {Cause 
'pending.) 

John  Savage        )       Certificate  of  levy. 

adv.  y      Jiecorded  May  26,  18SL 

William  R.  Smith.  )      Book  500,  p)age  210. 

0.  L.  Mann,  Sheriff  of  Cook  County,  III.  {by  Deputy), 
certifies,  that  by  virtue  of  a  writ  of  attachment  numbered 
78,928,  to  him  directed  from  the  Superior  Court  of  Cook 
County,  III.,  in  favor  of  William  R.  Smith,  plaintiff\  and 

'Of  course   this  alludes    only    to      thoroin;     personal   property   is    not 
levies    on   re»'    estate    or   interests      contemplated  in  this  work. 
26 


402  AliSTRACTS    OF   TITLE. 

against  John  Savage,  defendant,  dated  May  S3,  1S8L,  he  did 
on  "  this  "  ^3d  day  of  May,  1881,  levy  on  the  right,  title 
and  interest  of  said  defendant  in  and  to  the  following  real 
estate,  to  wit:   (Here  follows  the  description.) 

Where  the  action  is  duly  prosecuted  and  is  followed  by 
■judgment,  execution  and  sale,  the  attachment  may  be  indicated 
only  by  references  to  the  issue,  levy  and  return  of  the  writ, 
and  filing  of  certificate,  the  validity  of  the  sale  depending 
npon  the  judgment  and  execution;  but  where,  as  in  the  above 
example,  no  personal  service  has  been  had,  and  the  notice  is 
constructive  merely,  the  notice,  proof  of  publication,  and 
other  acts  necessary  to  confer  jurisdiction  must  appear.  The 
only  object  of  the  entries  as  above  is  to  show  the  fact  of  a 
lien.  Where  the  attachment  has  been  dissolved  or  the  action 
discontinued,  a  continuation  should  disclose  those  facts  so  as 
to  show  the  removal  of  the  lien. 


CHAPTER  XXYI. 


JUDGMENTS  AND  DECREES. 


§  1.    Defined  and  distinguished.  §11.  Exemptions. 

2.  Operation  and  effect  of  judg-  12.  Decrees,  classified  and  distin- 

ments.  guished. 

3.  Lien  of  judgments.  13.  Operation  and  effect  of  de- 

4.  Duration  of  lien.  crecs. 

5.  Priority.  14.  Decrees    rendered    on    con- 

6.  After-acquired  property.  structive  notice. 

7.  Formal    requisites    of    judg-  15.  Lien  of  decrees. 

ments.  16.  Formal  requisites  of  decrees. 

8.  Subrogation.  17.  Abstract  of  decrees. 

9.  Satisfaction  and  discharge.  18.  Errors  and  defects. 

10.     Judgments  against  a  deceased  19.  Operation  and  efloct  of  pro- 
person,  bate  decrees. 

§  1.  Judgments  and  Decrees — Defined  and  Distinguished. 
Any  distinction  between  jiidii^nientsand  decrees  is  rather  t'an- 
cifnl  than  real,  since  all  adjudications  by  a  court  of  compe- 
tent jurisdiction  are  essentially  judgments,  yet  in  practice  the 
term  ''  decree"  is  used  to  distinguish  the  determinations  and 
orders  of  a  court  of  equit\^,  while  the  terra  judgment  is  used 
to  denote  the  adjudications  of  a  law  tribunal.  Judgments  are 
usually  for  damages,  and  provide  for  a  definite  recovery  in 
money;  decrees  relate  mainly  to  specific  performance  or  op- 
erate in  some  specific  way  in  answer  to  the  prayer  of  the  com- 
]ilaint.  In  examinations  of  t'\t\e,  ju<}<^\nents  hi  person  a  t/i  are 
im])ortant  only  as  they  serve  to  encumber  the  land  of  the 
judgment  debtor  with  a  statutory  lien,  and  when  the  lien  lias 
been  extinguished,  either  by  lapse  of  time  or  satisfaction  of 
the  judgment,  the_y  become  of  no  importance  whatever  and  arc 
wholly  disregarded.  Decrees,  on  the  other  hand,  operating 
directly  upon  the  land,  are  of  controlling  efficacy.  The\'  be- 
come a  part  of  the  general  course  of  title,  and  through  what- 

(403) 


40i  ABSTRACTS    OF    TITLE. 

ever  mutations  it  may  afterward  pass,  they  always  remain  es- 
sential   links  of  the  chain.* 

§  2.  Operation  and  Effect  of  Judgments.  It  is  a  general 
rule,  that  a  judg-ment  by  a  court  havin<^  jurisdiction  over  the 
parties  and  the  subject-matter,  rendered  directly  U])on  the 
point  in  question,  is  conclusive  as  between  such  parties  and 
in  relation  to  such  point,^  and  there  is  no  essential  difference 
between  the  effect  of  a  decree  in  equity,  and  that  of  a  judg- 
ment at  law,  to  bar  a  subseipient  suit.^  But  such  adjudication 
is  conclusive  only  for  the  purposes  for  which  it  was  made,  and 
does  not  conclude  matters  collaterally  introduced  or  recited.* 
It  is,  however,  in  reojard  to  tlieir  effect  on  the  lands  of  the 
judgment  debtor,  by  reason  of  the  lien  given  l>y  the  statute, 
that  they  become  at  all  important  in  examinations  of  title,  and 
in  pursuing  such  examinations,  whatever  other  operation  or 
effect  they  may  have  is  comparatively  of  no  significance.  This 
has  reference,  however,  only  to  judgments  in  personam,  and 
not  to  judgments  in  legal  actions  which  operate  in  7'em. 

§  3.  Lien  of  Judgments.  Judgment  liens  are  statutory, 
and  can  be  enforced  only  according  to  statute;  at  common  law, 
the  judgment  creditor  could  have  satisfaction  only  out  of  the 
goods  and  chattels  and  present  profits  of  the  lands  of  the  debtor, 
but  in  the  United  States  it  is  the  policy  of  the  law  to  make 
all  of  a  man's  property,  real  as  well  as  personal,  liable  for  the 
payment  of  his  debts,  both  during  his  life  and  after  his  death, 
except  in  cases  of  specified  statutory  exemptions.     In  general 

*  The  Codes  of  Procedure,  adopted  both  by  the  bench  and  bar  the  term 

in  many  of  the  States,  do  not  recog-  is  used  and  in  the  sense  above  indi- 

nize  the    distinction    made   in  the  cated. 

above  paragraph.    Under  these  codes  ^  Geary  r.  Simmons,    39   Cal.  224; 

all  final  detenninations  of  the  rights  Spencer  v.  Dearth,  43  Vt.  98;  Gates 

of  the  parties  in  the  action  are  classed  tJ.  Preston,  41  N.  Y.  113;  Finney  r. 

as  judgments,  without  reference  to  Boyd,  26  Wis.  366;  Russell  %\  Place, 

the    subject-matter,    or    the    char-  94  U.  S.  606. 

acter  of    the     relief    granted.     In  ^  Foster  v.  The   Richard  Busteed, 
these  codes    the  word  "decree"  is  100  Mass.  409. 
not  used,  but  the  term  "  judgment  "  *  Fish  v.   Lightner,  44  Mo.   268; 
is  substituted  in  its  place,  as  regards  Land  v.  Keirn,  52  Miss.  341;  East- 
actions  both  of  an  equitable  and  a  man  v.  Porter,  14  Wis.  39. 
legal  nature.     In  practice,  however, 


JUDGMENTS    AXD   DECREES.  405 

personal  property  must  first  be  taken  upon  legal  process,  and 
it  is  a  universal  rule  that  tliis  is  the  ])riinarj  fund  for  payment 
of  debts,  after  the  death  of  tlie  debtor.'  A  judgment  lien  on 
land  constitutes  no  property  in  the  land  itself,^  for  the  lien  is 
but  an  incident,  not  the  object  of  the  judgment,  and  the  judg- 
ment creditor  is  not  entitled  to  any  advantage  which  his  debtor 
had  not.'  Such  lien  is  subject  to  all  equities  which  existed 
against  such  land,  in  favor  of  third  persons,  at  the  time  of  the 
recovery  of  the  judgment,  and  with  a  failure  or  extinguish- 
ment of  the  debtor's  title  the  lien  entirely  ceases  and  is  lost.* 
The  statute  usually  provides  that  the  judgment  shall  be  alien 
on  the  "  real  estate  "  or  "  lands  and  tenements  "  of  tlie  debtor 
for  a  specified  period,  but  is  sometimes  coupled  with  conditions 
relative  to  the  issuance  of  execution,  etc.,  the  observance  of 
which  is  necessary  to  perfect  the  lien.  The  terms  "  real  estate  " 
or  "  lands  and  tenements,"  as  used  in  this  connection,  are  of 
very  broad  signification,  and  have  been  held  to  include  remain- 
ders and  reversions  vested  under  legal  titles,  as  well  as  legal 
estates  in  possession,^  but  do  not  embrace  mere  equities'^  or 
inchoate  rights;  nor  does  a  judgment  against  a  firm  create  a 
lien  upon  the  individual  property  of  the  partners.'  Tiie  lien 
of  a  judgment  rendered  by  a  State  court  attaches  only  to  the 
land  of  the  debtor  situate  within  the  countj'  for  which  the  court 
is  held,  or  in  which  a  transcript  has  been  regularl}^  docketed, 
and  a  certificate  covering  only  the  county  courts  of  record 
is  all  that  is  necessary  to  fully  apprise  intending  pui-chasers 

1  Mitchell  V.  Wood,  47  Miss.  231;      175. 

Whitney  V.  Whitney,  14  Mass.  88.  ^  oixon   v.  Dixon,   81  N.   C.  32:"!; 

2  School  Dist.  V.  Werner,  43  Iowa,       Powell  v.  Knox,  16  Ala.  364.     This 
613;  Conrad  v.  Ins.  Co.,  1  Pet.  378.        doctrine,  however,  is  not  universal, 

'Reed's  Appeal,  13  Penn.  St.  475.  and     though    the    prevailiiifr    one, 

*  Hydraulic  Co.  v.  Loughry,  12  Re-  in  several  of  the  States  it  is  denied: 

porter,  526;    McBane  v.  Wilson,  12  Bee  Lathrop  r.  Brown,  23  Iowa,  40; 

Reporter,  325;  Frazerv.  Thatcher,  49  Jackson  v.  Williams,  10  Oliio,  GO. 
Tex.  26.      A  judgmrnt    recovered  ^  Stadler  r.  Allen,  44  Iowa,  198. 

against  a  person  after  he  is  adjudged  If  they  are  all  made  joint  defendants, 

banknipt,  becomv's  no  lien  upon  the  they  will  all  be  severnlly  lial)le  and 

lands  of  the  bankrupt:    Burgett  v.  all  the  incidents  of  a  ju^nnent  will 

Paxton,  99  111.  288.  attach  to  their  several  estates:   Star- 

^  Lawrence  v.   Belger,  31  Ohio  St.  ry  r,  Johnson,  32  Ind.  433. 


406  ABSTRACTS   OF   TITLE. 

of  the  condition  of  the  title  so  far  as  same  may  be  affected  by 
the  adjudication  of  the  State  courts.'  Eut  jndgnients  rendered 
in  the  federal  courts  have  the  same  lien  on  the  lands  of  the 
debtor  within  the  district  that  is  siven  to  the  jud<^ments  of  the 
State  courts  within  the  limits  of  their  respective  territorial 
jurisdictions,^  and  it  is  quite  as  essential  that  the  federal 
courts  of  the  district  be  covered  by  the  search,  as  the  county 
courts.  A  judi^ment,  whether  of  State  or  federal  courts  is  not 
a  specific  lien  upon  any  particular  real  estate  of  the  judgment 
debtor,  but  extends  generally  upon  all  his  real  estate,  subject 
to  prior  liens,  legal  or  equitable.^ 

§  4.  Duration  of  Lien.  The  lien  of  judgments  upon  real 
estate  is  regulated  by  statute,  and  the  general  rule  is,  that  the 
lien  continues  for  ten  years  from  the  rendition  of  the  judg- 
ment, and  no  longer,  except  that  in  a  few  enumerated  cases 
where  a  party  is  restrained  from  enforcing  his  judgment  by 
appeal,  injunction,  etc.,  the  time  so  consumed  is  exchided 
from  the  computation.  A  purchaser  from  a  judgment  de- 
fendant, alter  the  expiration  of  ten  years  from  the  rendition 
of  the  judgment,  takes  the  land  discharged  from  the  lien  of 
same,  unless  it  has  been  preserved  by  some  of  the  excep- 
tions contained  in  the  statute.*  Ordinarily  a  search  for  judg- 
ments covering  a  period  of  ten  years  is  sufficient,  and  it  is 
not  customary  for  the  examiner  to  certify  judgments  for  a 
longer  time.  Unless  specially  excepted  neither  injunction, 
appeal,  nor  other  cause  will  have  the  etfect  to  prolong  the  lien 
beyond  the  statu tor}^  period,  as  against  a  purchaser  from  the 
judgment  debtor.^     As  has  been  seen,  a  judgment  rendered  in 

^  Baker  v.  Chandler,  51    Ind.  85.  Judgment  liens  being  purely  legal, 

The  lien  of  a  judgment  of  the  Su-  should  they  fail  at  law,  can  not  be  ex- 

preme  Court  is  co-extensive  with  the  tended  in  equity:  Douglass  v.  Hous- 

territorial  limits  of  the  State:  Dur-  ton,  6  Hammond  (Ohio),  162. 

ham  V.  Heaton,  28  III.  264.  *App1egate  t).  Edwards,    45  Ind. 

2  Sellers  i?.  Corwin,  5  Ohio,  398;  329. 

Shrew  v.  Jones,  2  McLean,  78;  Mas-  ^  Tucker  v.  Shade,  25  Ohio  St.  355. 

singill  V.  Downs,  7  How.  760;  Brown  The  lien  of  a  judgment  is  a  qualified 

V.    Pierce,  1    Wall.   205;  Branch  v.  right,  given  by  law.  and  may  be  ta- 

Lo'very,  31  Tex.  96.  ken  away  by  law;  Houston  v.  Hous- 

*  Rodgers  v.  Bonner,  45  N.  T.  379.  ton,  G7  Ind.  276,  and  when  the  law 


JUDGMENTS    AXD    DECREES.  407 

tlie  federal  courts  has  tlie  same  lien  on  tlic  lands  of  the  debt- 
or within  the  district  that  is  given  to  a  judgment  of  a  State 
court  witliin  the  limit  of  its  territorial  jurisdiction/  but  it  is 
provided  that  "judgments  and  decrees  rendered  in  a  United 
States  circuit  or  district  court,  within  any  State,  shall  cease  to 
be  liens  on  real  estate  or  cliattels  real,  in  the  same  manner 
and  at  like  periods  as  judgments  and  decrees  of  the  courts  of 
such  State,  cease,  by  law,  to  be  liens  thereon."  ^ 

§  5,  Priority.  It  lias  been  held,  that  neither  judgment 
creditors  nor  purchasers  at  sheriff's  sale,  deriving  rights  by 
operation  of  law,  are  regarded  as  purchasers  for  a  valuable 
consideration,  but  as  mere  volunteers  in  contemplation  of  a 
court  of  equity,'  and  that  the  general  lien  of  a  judgment 
creditor  upon  the  lands  of  his  debtor  is  subject  to  all  equities 
which  existed  against  such  lands,  in  favor  of  third  persons,  at 
the  time  of  the  recovery  of  the  judgment.*  xViid  generally 
this  is  true,  j-et,  under  the  statute,  as  it  exists  in  a  majority 
of  the  States,  the  lien  of  a  docketed  judgment  lawfully  ob- 
tained at  the  suit  of  any  party  against  the  ])er5on  in  whose 
name  the  title  to  such  land  appears  of  record,  will  have  priority 
over  that  of  an  unrecorded  mortgage,  or  conveyance.*  These 
statutes  protect  judgment  creditors  as  hona  fide  purchasers 
for  a  valuable  consideration,  whose  liens  arise  while  the 
record  title  appears  in  the  judgment  debtor,  although  in  fact 
ho  may  have  conveyed  the  property.     As  between  judgment 

is  repoalcd  upon  which  the  lien  de-  ive,  will  not  render  the  purchase  mala 
pends,  the  lien  is  destroj-ed  by  the  fide:  Little r.  Harvey,  9  Wend.  157. 
repeal:  Ray  v.  Thompson,  43  Ala.  'Sellers  v.  Corwin,  5  Ohio,  398; 
434.  A  familiar  form  of  statutory  Shrew  r.  Jones,  2  McLean,  78;  Mas- 
expression  is,  that  the  judgment  singil  v.  Downs,  7  How.  7C0. 
shall  cease  to  be  a  lien  or  incum-  ^U.  S.  Rev.  Stat.,  §  967.  See  Mey- 
brance  on  any  real  estate,  as  against  ers  v.  Tyson,  13  Blachf.  242. 
purchasers  in  good  faith,  subsequent  *  Davis  v.  Hamilton,  50  Miss.  213. 
incumbrancers,  etc.,  but  within  the  *  Hydraulic  Co.  v.  Loughry,  12  Re- 
moaning  of  such  an  act,  all  purchas-  pox-tei*,  526;  Apperson  v.  Burgett, 
ers  are  to  be  considered  as  purchasers  33  Ark.  328. 

in    good    faith,  except    those  who  ^  Lash  v.   Hardick,  5  Dillon,  505; 

purchase  with  an  actual  fraudulent  Wood    f.    Young,    G'S    Iowa,    102; 

intent,  and  mere  notice  of  the  prior  Miss.    Valley  Co.  r.  R.  R.  Co.,  58 

judgment,  either  actual  or  construct-  Miss.  846. 


408  ABSTRACTS   OF   TITI,E. 

creditors  there  is  no  general  rule  respecting  prioritj',  the 
matter  being  usually  regulated  by  statute.  Judgments 
rendered  at  the  same  term  of  court,  or  on  the  same  day  in 
vacation,  ordinarily  have  no  priority  over  each  other,  but  this 
is  by  no  means  a  uniform  observance,  and  it  has  been  held, 
that  when  several  judgments  are  rendered  at  the  same  term  of 
court,  but  on  different  days,  such  judgments  do  not  relate  to 
the  iirst  day  of  the  term  and  become  effective  as  of  that  date, 
but  are  liens  on  the  real  estate  of  the  judsment  debtor  only 
from  the  dates  at  which  they  are  respectively  entered  or 
docketed,  and  take  priority  accordingly.^  When  lands  are 
encumbered  simultaneous  with  their  acquisition,  the  incum- 
brance being  to  secure  the  unpaid  purchase  money,  the 
authorities  are  uniform  in  declaring  that  such  incumbrance 
will  take  priority  over  the  lien  of  a  judgment  already  dock- 
eted.^ "  The  reason  for  this  is  readily  found,"  observes  Free- 
man, "when  we  remember  that  it  is  a  universally  recognized 
principle  of  law  that  no  judgment  lien  can  be  a  charge  upon 
any  greater  interest  than  the  defendant  owns.  A  purchaser 
who  has  paid  only  a  portion  of  the  sum  contracted  to  be  paid, 
has  no  title  which  is  not  liable  to  be  subjected  to  the  lien  of 
the  vendor  for  unpaid  purchase  money.  A  judgment  against 
such  a  vendee  must,  therefore,  be  subordinate  as  a  Hen  to  that 
held  by  the  vendor;  and  for  this  purpose,  it  is  perfectly  im- 
material whether  the  claim  is  put  in  the  shape  of  a  vendor's 
lien,  or  of  a  mortgage  to  secure  the  payment  of  purchase 
money." 

§  6.  After-acquired  Property.  It  is  a  well  established  doc- 
trine of  the  common  law,  that  the  lien  of  a  judgment  at- 
taches to  and  binds  land,  the  title  to  which  is  subsequently 
acquired  by  the  judgment  debtor,  and,  where  the  statute  is 
silent  on  the  subject,  this  rule  has  been  generally  received  and 
acted  upon  throughout  the  United  States.^  The  lien  does  not 
take  effect  by  relation  as  of  tlie  date  of  the  judgment,  but  at- 
taches to  such  after-acquired  property  only  from  the  time  it 
is  acquired  by  the  judgment  debtor,  and  the  lien  of  all  judg- 

J  Anderson  v.  Tuck,  33  Md.  225.  ^xhulemeyer  v.    Jones,   37    Tex. 

2  Curtis  V.  Root,  20  111.  53.  5G0. 


JUDGMENTS    AND   DECREES.  409 

ments  in  existence  wlicn  tlie  debtor  obtains  the  property  at- 
taches alike.^ 

§  7.  Formal  Requisites  of  Judgments.  iSTo  particular  form 
of  vvorda  is  necessary  to  be  employed  in  rendering  a  judgment,^ 
provided  they  are  certain  and  find  the  sum  for  which  they  are 
rendered,  but  failing  in  this,  they  are  fatally  defective/  The 
certainty  required  has  reference  both  to  the  parties  and  the 
recovery,  for  the  judgment  is  regarded  as  a  unit  and  must 
comprehend  all  the  parties  then  before  the  court,  while  the 
recovery  must  be  certain  and  specific  in  the  amount  with 
nothing  left  to  implication:  thus,  a  judgment  for  "four  hun- 
dred and  sixty-one  and  53-100  damages  "  is  not  for  a  certain 
definite  sum  of  monej",  and  is  therefore  a  nullity,*  and  where 
only  numerals  are  used  without  some  mark  or  word  indicat- 
ing for  what  tliC}-  stand,  the  judgment  is  insufficient.*  Other- 
wise, to  constitute  a  judgment  record  valid  upon  its  face  so 
that  it  may  be  enforced  by  action,  nothing  more  need  apjiear 
by  it  than  that  the  court  had  jurisdiction  of  the  subject-mat- 
ter of  the  action  and  of  the  parties,  and  that  a  judgment  was 
in  fact  rendered.®  In  the  abstract  it  is  customary  to  give  the 
name  of  the  forum,  together  with  the  case  number  or  some 
other  index  for  the  purpose  of  reference;  the  full  title  of  the 
case,  and  a  statement  of  the  fact  of  judgment,  together 
with  the  amount  for  which  it  was  rendered.  A  synopsis  of 
the  judgment  is  rarely  given,  nor  is  it  at  all  necessary,  yet 
the  examiner  should  always  carefully  examine  same  for 
errors  of  form  or  substance,  as  the  omission  of  parties,  im- 
perfect recitals  of  recovery,  etc.  "Where  the  judgment  be- 
comes dormant  unless  followed  by  execution  it  becomes  neces- 
sary to  show  the  issuance  and  return  of  same,  provided  such 
facts  appear  of  record.  A  minute  of  judgments  in  personam 
may  be  shown  in  this  manner: 

'Coycew.   Stovall,   50  Miss.   3r'6;  Lirette  r.  Carrane,  27  La.  Ann.  208; 

Babcock  v.    Jones,    15  Kan.    296;  Randolph     v.    Metcalf,   G     CuUlw. 

Wales  V.  Bogue,  31  111.  4(14.  (Tenn.)  400. 

2  Guild  V.  Hall,  91  111.  223;  Church  *  Carpenter  r.  Sherfv,  71   111.  427. 

V.  Crossman,  41  Iowa,  373.  *  Lawrence  v.    Fast,  20    111.  cAS; 

»Ry.    Co.   V.  Chicafro.  53   111.80;  Avery  r.  Babcock,  35  111.  175. 

Carpenter  r.   Sherfy,    71    III.    427;  ^MaxwelU'.  Stewart,  22  Wall.  77. 


410  ABSTRACTS    OF   TITLE. 

Judgments. 


Henry  W.  Newman 

V. 

William^  Jasper. 


In  the  Sujperior  Court  of  CooJc  County,  III. 
Case  No.  53,166. 
Assumpsit. 

Fee  Book  35,  page  585. 
Judgment  rendered  against  de- 
fendant, Dec.  9,  187 J^,  for  $63^92. 

Execution  No.  22,993  issued,  dated  Dec.  9, 187 Jf,,  returned, 
no  part  satisfied. 

Any  additional  matter  that  may  seem  material,  as,  the  is- 
suance of  alias  or  piuries  executions;  remission  or  satisfaction 
of  any  part  of  the  judgment,  etc.,  may  be  shown  after  this 
point,  with  such  detail  as  may  be  necessarj^,  thus: 

Dec.  18,  187 li,.  Plaintiffs  remit  %103.61. 
Dec.  20,  187 Jf,,  Execution  {alias)  issued  ami  returned  satis- 
fied for  $100.00. 

Where  the  lien  of  the  judgment  is  independent  of  execution 
the  note  of  the  issuance  of  same  is  immaterial,  except  as  it 
may  tend  to  show  a  reduction  or  partial  satisfaction,  but  in 
many  of  the  States,  when  execution  is  not  issued  on  a  judg- 
ment within  one  year  from  the  time  of  its  rendition  the 
lien  thereafter  ceases  and  is  lost.  Executions  may  also  be- 
come operative  as  liens  from  the  time  they  are  delivered  to 
the  sheriff,  or  other  proper  officer,  to  be  executed,  when  is- 
sued during  the  statutory  period,  even  though  the  general 
lien  of  the  judgment  has  been  lost  by  laches.  Wherever  the 
rule  last  stated  prevails  the  issuance  of  execution  becomes 
almost  as  important  as  the  rendition  of  the  judgment,  and  in 
abstracting  the  judgment,  careful  search  must  also  be  made 
for  executions,  and  should  none  appear  of  the  record  it  would 
seem  that  such  fact  should  be  affirmatively  stated  rather  than 
left  to  inference.  There  can  be  no  doubt  that  this  course 
would  frequently  save  inquiries  by  counsel  and  greatly  ex- 
pedite his  labors.  In  continuations,  where  the  former 
examination  shows  a  judgment  upon  wliich  no  execution 
appears  to  have  issued  prior  to  the  date  of  such  examina- 


JUDGMENTS    AND    DECREES.  411 

tion,  the  subsequent  steps,  if  any,  should  appear  in  the 
continuation,  either  by  re-exhibiting  the  judgment  and  re- 
sulting proceedings,  or  by  setting  forth  the  substance  of  such 
proceedings  in  a  note.* 

§  8.  Subrogation.  Where  lands  incumbered  by  a  judg- 
ment are  conveyed  with  covenants  of  warranty  to  a  purchaser 
for  full  value,  the  grantee  and  his  successors  in  interest  oc- 
cupy a  position  similar  to  tliat  of  sureties  for  the  judgment 
debtor  and  are  entitled  to  the  same  equities.  A  release  by 
the  judgment  creditor  without  their  consent  and  with  knowl- 
edge of  their  rights  of  any  security  to  which,  in  equit}',  they 
would  be  entitled  on  payment  of  the  judgment,  discharges 
the  lien  of  the  judgment.^ 

§  9.  Satisfaction  and  Discharge.  Judofments  may  be 
satisfied  by  an  entrj'^  upon  the  record;  by  a  formal  release  or 
satisfaction  filed  in  the  case;^  or  by  a  return  of  the  execution 
fully  satisfied.  The  particular  method  emploj'ed  is  of  little 
moment  to  the  examiner  and  only  noticed  by  him  in  case  of 
a  continuation,  where  the  former  examination  shows  a  sub- 
sisting unsatisfied  judgment.  Even  in  this  instance  it  is  not 
absolutely  necessary  that  it  be  noticed  in  the  abstract,  as  his 
certificate  to  the  effect  that  there  are  no  judgments  unsatisfied 
of  record  would  be  sufficient  to  show  the  discontinuance  of 
the  lien,  yet  it  is  recommended  as  the  better  practice,  that, 
where  the  former  examination  shows  unsatisfied  judgments, 
but  which  subsequent  to  the  date  of  such  examination,  and 
prior  to  that  of  the  continuation  have  been  discharged  or 
satisfied,  and  which  if  unsatisfied  would  still  be  a  lien,  such 
satisfaction  or  discharge  should  affirmatively  appear. 

'See   also  " Satisfaction  ixncl  Dis-  the  equitable  rights  of  the  owner 

charge,  "  infra.  and  without  his    consent,    released 

"■'Barnes  r.  Mott,    64  N.    Y.  397.  the  sureties  in  the  undertaking.    And 

So  held,  where   after  such   convey-  see  Ellsworth  v.  Lockwood,  42  N.  Y. 

ance,  the  judgment  debtor  gave  nn  8!);  Bank  of  Albion  r.  Burns,  -JG  X. 

undertaking    on    appeal    from    the  Y.  170. 

judgment  securing  the  amount  there-  ^The    satisfaction    piece,    though 

of  and  staying  execution,  and  after  filed,  is   not  a  record,  but  a  mere 

affirmance  ofthe  judgment  the  judg-  warrant  to  the  clerk  to  enter  satis- 
mcnt  creditor,    with    knowledge  of 


412  ABSTRxVCTS    OF    TITLE. 

§  10.  Judgments  against  a  Deceased  Person.  It  is  a  rule 
of  the  common  law,  and  one  generally  observed  in  all  the 
States,  that  a  judgment  against  a  deceased  person,  either 
natural  or  artificial,  is  absolutely  void,  and  the  fact  that  serv- 
ice may  have  been  obtained,  or  the  suit  connnenced  before 
the  death  of  the  party,  in  the  absence  of  any  statutory  pro- 
vision on  the  subject,  does  not  affect  the  operation  of  the  rule.* 

§  11.  Exemptions.  The  homestead  acts  of  the  different 
States  have  created  an  exception  to  the  general  rule  which 
subjects  the  lands  of  the  debtor  to  the  lien  of  judgments  re- 
covered against  him,  and  an  exemption  from  levy  and  forced 
sale  is  made  of  certain  lands  which  shall  be  occupied  by  the 
debtor  as  a  homestead.  This  exemption  consists  either  of  a 
specific  allotment  of  land  determined  by  fixed  boundaries;  or, 
of  an  estate  of  limited  duration,  measured  by  a  definite  money 
value  and  without  reference  to  the  quantity  of  land  occupied. 
The  lien  of  the  judgment  does  not  affect  such  homestead, 
either  in  the  possession  of  the  judgment  debtor  or  his  grantee. 

§  12.  Decrees  Classified  and  Distinguished.  Decrees  are 
classified  as  interlocutory  and  final,  the  former  being  one 
which  only  partially  disposes  of  the  subject-matter,  or  of  a 
particular  portion  thereof,  leaving  something  still  to  be  done; 
the  latter,  disposing  of  the  whole  subject,  deciding  all  ques- 
tions in  controversy,  ascertaining  the  rights  of  all  the  parties, 
and  awarding  the  costs.'*  The  fact  that  something  remains  to 
be  done  to  carry  out  or  enforce  the  decree  does  not  render  it 
any  the  less  final,^  but  the  true  test  seems    to    be,  that  no 

faction  on  the  roll:     Lowns  p.  Rem-  representatives   or  revivor  by  scire 

sen,  7  Wend.  85.  facias. 

1  Burke  v.  Stokely,  65  N.  C.  569;  ^Xaylor  v.    Keed,  4    Paiije,    561: 

Life  Assoc,   of  America  v.  Fassett,  Mills  v.  Hoag,  7  Paige,  18;  Kane  v. 

102  111.  315.     Where  the  judg-ment  Whittick,  8  Wend.  224. 

was  recovered   prior  to  defendant's  ^  To  avoid  the   confusion  incident 

death  it  may  be  revived  ynd  enforced  to  the  use  of  the  word  judgment,  in 

against  his  estate  by  sci.  fa. :  Brown  two  senses,  one  as  interlocutory,  and 

V.   Parker.  15   111.    307.     While  if  the  other  as  final,  the  codes    desig- 

execution  had  been  issued  and  levied  nate  the  former  as   orders,  and  do 

during  the  lifetime  of  such  defend-  not   recognize   such   a  thmg  as  an 

ant,  a  sale  after  his  death  will   be  interlocutory  judgment, 
valid  without  any  notice  to  his  legal 


JUDGMENTS    AND    DECREES. 


413 


fiirtlier  necessity  exists  for  brin^nng  the  cause  again   before 
the  eonrt.^ 

§  13.  Operation  and  Effect  of  Decrees.  A  formal  decree 
operates  differently  from  a  judgment,  but  its  effect  is  the 
same,  and  the  same  general  rules  apply  with  equal  force  to 
either.  As  res  adjudleata  it  is  conchisive  upon  the  ques- 
tions actually  presented  or  directly  involved,"  though  not 
upon  collateral  issues/  and  embraces  not  only  the  questions 
actually  contested  and  determined,  but  also  all  those  which 
might  have  been  if  they  had  been  reasonably  presented.*  It 
is  binding  on  ]iarties  and  privies  and  imports  such  absolute 
verity  that  it  can  not  be  attacked  collaterally  on  account  of 
mere  irregularities  in  the  proceedings  by  one  not  a  partv  in 
interest,^  nor  can  defects  therein  be  set  up  by  a  stranger  to 
the  record,  for  the  purpose  of  defeating  a  claim  of  right  to 
land  bused  thereon.'*     It  is  evidence  of  itself  to  sustain  a  con- 


'  Mills  r.  Hoa^.  7  Paigo,  18;  But- 
leri'.  Lee,  83  How.  251.  An  inter- 
locutory decree  is  pi'operly  a  decree 
pronounced  for  the  purpose  of  ascer- 
taining matter  of  law  or  fact  prepar- 
atory to  a  final  decree.  Therefore, 
when  it  happens  that  some  ma- 
terial circumstance  or  fact  neces- 
sai-y  to  be  made  known  to  the  court 
is  either  not  stated  in  the  plead- 
ing's, or  is  so  imperfectly  ascertained 
by  them  that  a  court  is  unable  to  de- 
termine finally  between  the  parties; 
and  therefore,  a  reference  to,  or  an 
inquiry  before  a  master,  or  a  trial  of 
facts  before  a  jury  becomes  neces- 
sary, the  decree  entered  for  that  pur- 
pose is  an  interlocutory  decree.  The 
court,  in  the  meantime,  suspends  its 
final  decree,  until  by  the  master's  re- 
port, or  verdict  of  the  jury,  it  is  en- 
abled to  decide  finally:  1  Barb.  Ch. 
Prac.  *32r);  Seaton  on  Decrees,  2;  1 
Harr.  Ch.  Prac.  420. 

"  Geary  v.  Simmons,  39  Cal.  224, 


Cannon  v.  Brame,  45  Ala.  2G2;  Fos- 
ter V.  The  Richard  Busteed,  100 
Mass.  409;  People  v.  Brislin,  80  111. 
423;  State  v.  Ramsburg,  43  ]\ld. 
325.  When  a  judgment  or  decree  is 
rendered  by  consent,  or  as  the  re- 
sult of  a  compr.  imise,  it  can  not  be 
admitted  as  res  adjudicata;  Wad- 
hams  V.  Gay,  73  111.  415.  And  such 
decree  would  only  bind  the  parties 
consenting,  and  would  not  affect  the 
rights  of  others  not  made  parties  to 
the  suit,  but  who  should  have  been: 
Dibrell  v.  Carlisle,  51  Miss.  785. 

3  Land  v.  Keirn,  52  Miss.  341 ;  Ea.st- 
man  v.  Porter,  14  Wis.  39;  Fish  r. 
Lightner,  44  Mo.  208. 

*  i'etersine  v.  Thomas,  28  Ohio  St. 
596;  Bates  v.  Spooner,  45  Ind.  489; 
Hungerford's  Appeal,  41  Conn.  322; 
Talbot  V.  Todd,  5  Dana,  193. 

'^Myler  v.  Hughes,  60  .Mo.  105. 

*  Lathrop  r.  American  Kmig.  Co. 
41  Iowa,  547;  Pottit  r.  Cooper,  9  Lea 
(Tenn.),  21. 


414  ABSTRACTS  OF    TITLE. 

vej'ance  made  under  it/  but  where  it  does  not  in  terms  divest 
the  title  of"  the  defendant,  but  merely  directs  the  execution  of 
a  deed,  until  such  execution,  the  legal  title  remains  in  the  de- 
fendant.^ A  reversal  of  the  decree  does  not  divest  the  title  of 
a  purchaser  in  good  faith,"  who  is  a  stranger  to  the  record,  but 
all  rights  acquired  by  parties  to  the  suit,  as  purchasers  of  the 
hmd  under  the  decree,  fall  with  the  reversal.*  A  decree  upon 
a  matter  not  involved  by  the  cause,  nor  in  issue  by  the  plead- 
ings, is  coram  nonjudlce  and  void,*  and  will  be  treated  as  a 
nullity,  even  in  a  collateral  proceeding." 

§  14.  Decrees  rendered  on  Constructive  Notice.  The  re- 
marks of  the  last  section  must  be  understood  to  apply  more  par- 
ticularly to  decrees  which  have  been  rendered  upon  a  full  hear- 
ingof  the  case  and  with  all  the  parties  properly  before  the  court. 
Where,  however,  there  has  been  no  personal  service  upon  the 
defendants,  and  such  persons  are  before  the  court  onl}'-  con- 
structively by  a  substituted  service,  somewhat  dilferent  rules 
prevail.  The  law  will  not  hastily  preclude  a  person's  rights 
when  he  has  had  no  opportunity  to  be  heard,  hence,  a  decree 
entered  in  such  a  case  does  not  become  iinal  and  conclusive 
nntil  some  time  has  elapsed  during  which  the  defendants  may 
come  forward  and  urge  any  matter  they  may  have  in  extenu- 
ation or  defense.  The  time  allowed  for  this  purpose  as  well 
as  the  method  by  which  such  defendants  are  let  in,  are  mat- 
ters of  local  statutory  regulation,  but  the  principle  is  of  gen- 
eral observance,  that  all  persons  acquiring  rights  under  such 
decree,  before  it  becomes  final  and  cou'dusive,  are  equally  af- 
fected with  notice  of  its  conditional  character;  and  all  inter- 
ests so  acquired,  whether  for  a  valuable  consideration  or  other- 
wise, are  entirely  dependent  upon  the  confirmation  of  the  de- 
cree, which,  if  vacated,  renders  all  proceedings  under  it  a  mere 

^  Grebbin  r.  Davis,  2  A.  K.  Marsh  (Ohio),  353. 

(Ky.),  17;    Dunklin    v.   Wilson,    64  *  Fishback  v.    Weaver,    34  Ark. 

Aia.  162.  569. 

2  Peak  V,  Ligon,  10  Yerg.  (Tenn.)  » Meredith  v.  Little,  6  Lea  (Tenn.), 
469.  517. 

3  Taylor    v.    Boyd,    3  Hammond  «  Munday  «.  Vail,  34  N.  J.  L.  418. 


JUDGMENTS    AND    DECREES.  415 

nullity,  and  of  this  all  persons  dealing  witli  the  land  must 
take  notice.' 

§  15.  Lien  of  Decrees.  Decrees,  equally  with  judgments, 
create  liens  upon  tlie  lands  of  tlie  losing  party.  This  follows 
as  an  incident  where  there  is  a  money  decree  in  jpersonam^ 
wliilc,  by  statute,  where  a  decree  is  prononnced  requiring  a 
party  to  perform  some  act  other  than  the  j^ayment  of  money, 
it  may  be  made  a  lien  upun  the  property  of  such  party  until 
he  shall  jjerform  the  acts  mentioned  in  the  decree.  In  the 
first  instance  the  lien  has  the  same  force  and  effect,  and  is 
subject  to  the  same  limitations  and  restrictions  as  judgments 
at  law.^ 

§  16.  Formal  Requisites  of  Decrees.  Unlike  judgments 
in  personam,  which  are  ordinarily  shown  only  by  a  brief  ref- 
erence, decrees  and  judgments  in  rem,  or  which  aflect  or  im- 
plicate title,  are  copied  almost  verbatim,  or  at  least  set  furtli 
with  little  condensation.  The  formal  parts  of  decrees  are, 
the  caption  and  title  of  the  cause;  the  recitals;  and  the  or- 
dering or  mandatory  clause.  A  fourth  part,  called  the  declara- 
tory clause,  is  sometimes  added.*  The  strictly  formal  ])arts 
which  relate  to  the  ca])tion,  etc.,  may  in  some  cases  l)e  abbre- 
viated, particularly  when  the  decree  is  shown  in  regnlar  order 
as  a  part  of  the  synopsis  of  the  proceedings  of  the  court  which 
pronounced  it,  but  when  the  abstract  is  made  from  a  certified 
copy  recorded  with  the  recorder  of  deeds,  it  is  advisable  to 
show  these  parts  also.  The  caption  shows  the  court,  term, 
day,  etc.,  on  which  the  decree  was  rendered;  the  name  of  the 
presiding  judge  or  chancellor;  and  the  title  of  the  cause.  The 
recitals  are  now  very  meagre  and   refer  briefly  and  generally 

'  Southern    Bank    ».  Humphreys,  '  Karnes  v.   Harper,  48   III.  527; 

47  111.  227.  Eanies  v.  Germania  Turnvoroin,  74 

2  Karnes  v.   Harper,  48   III.   527;  111.56. 

Yackle  v.  Wightman,  103   111.   1C9.  *  When  this  is  iiseil  it  imineiliato- 

No  personal  decree  can  be  rendered  ly  precedes  the  ordering  part,  and 

in  equity    against    defendants    not  consists  of  a  declaration  of  the  rights 

personally   before   the  court;   as  to  of  the  parties.     It  is  not  necf'ssary, 

such  defendants  the  bill  must  be  dis-  however,  and  its   omission  will  not 

missed  without  prejudice:  Virden  v.  invalidate  the  decree. 
Needles,  98  111.  366. 


41G  ABSTRACTS    OF   TITr.E. 

to  the  liGarin<^,  pleadiuf^s  and  proofs,  and  to  the  fact  of  their 
huvini^  been  duly  considered  by  the  court.  Formerly  it  was 
customary  to  set  out  at  great  lengtli  the  pleadings,  evidence, 
etc.,  but  this  practice,  by  reason  of  its  expense  and  incoven- 
ience,  has  been  discontinued,  and  the  inducement  of  tlie 
recitals  reduced  to  a  bare  mention,^  although  in  some  States 
the  evidence  still  is,  or  may  be,  preserved  in  some  instances 
in  this  manner.^  The  recitals  being  brief,  should  be  shovvn  in 
full."  The  ordering  or  mandatory  clause  is  the  vital  part 
of  the  decree,  and  must  always,  with  the  exception  of  the 
part  referring  to  the  costs,  be  copied  verbatim.  This  part 
contains  the  specific  directions  of  the  court  with  reference  to 
the  subject-matter  before  it,  and  provides  for  the  final  dispo- 
sition of  the  rights  of  the  litigants.  All  decrees  must  be 
founded  on,  and  in  conformity  with,  the  allegations  and 
proofs;  and  can  not  be  based  upon  a  fact  not  put  in  issue  by 
the  pleadings;*  when  not  supported  by  the  pleadings  they  are 
as  fatally  defective  as  though  not  sustained  by  the  verdict  or 
findings.' 

§  17.  Abstract  of  Decrees.  From  wliat  has  been  said  it 
will  be  perceived  that  an  abstract  of  a  decree,  unless  same 
preserves  the  evidence,  can  consist  of  little  else  than  a  copy 
of  such  decree.  The  recitals  may  permit  of  a  little  condensa- 
tion, and  the  mandatory  parts  that  refer  to  the  costs  are  also 
susceptible  of  the  same  treatment.  A  little  of  the  verbiage 
of  the  caption  may  also  be  condensed  and  omitted,  thus: 

^  Donsman  r.  Hooe,  3  Wis.  466.  recitals  sLould  be  fully  stated.    See 

2Cooley  V.    Scarlett,  38   III.  316;  Turner  v.  Jenkins,  79  111.  228;  Ri- 

Walker  v.  Gary,  53  111.  470.  vard  v.  Gardner,  39  111.  125;  Pretty- 

^  Though  formerly  a  stricter  rule  man   v.  Barnard,  37  111.    105;    Ha- 

prevailed,  every  reasonable  presump-  worth  r.  Huling,   87  111.23;  Belden 

tion  is  now  indulged  in  favor  of  the  v.  Meeker,  2  Lans.  (N.  Y.),  470. 

jurisdiction  of  a  court  of  general  ju-  *  1  Barb.  Ch.  Prac.  *339  ;  Carneal 

risdiction,  a,nd  its  findings  in  decrees  v.  Banks,  10  Wheat.  181;  Maunday 

are  held  to  be^^r/wa  facie  evidence  v.  Vail,  34  N.  J.  L.  418. 

of   the    existence    of  jurisdictional  *  Bachman  v.   Sepulveda,  39  Cal. 

facts,  while  the  recitals   frequently  688;    Marshman  r.   Conklin,  21  N. 

have  the  further  effect  to  cure  defects  J.  Eq.  546;  Parsley  v.  Nicholson,  65 

of  service,  etc.     For  this  reason  the  N.  C.  207. 


JUDGMENTS    AND    DECREES.  417 

Circuit  Court  Cook  County. 

Alexander  Stewart      ]      June  Term,  18S3. 
vs.  \      In  Chancery. 

Charles  Dalton.  )  liecites,  that  this  cause  having 
come  on  to  he  heard  upon  the 
pleadings  herein  and  the  proofs  taken  in  said  cause.,  and 
having  been  argued  by  counsel,  and  the  court  having  duly 
considered  the  same,  and  being  fully  advised  in  the  prem- 
ises;^ 

Doth  order,  adjudge  and  decree,  that  the  said  deed  of  convey- 
ance from  William  Jones  and  wife  to  the  defendant,  Charles 
Dalton,  bearing  date  January  If,,  1882,  of  said  preinises, 
to  wit:  [set  out  description']  and  recorded  in  the  recorders 
office  of  Cook  County,  III.,  as  Doc.  120,2Ii!2,  be,  and  the  same 
is  hereby  set  aside  and  declared  null  and  void,  as  against 
the  complainant,  his  heirs  and  assigns,  as  a  cloud  upon  the 
title  of  the  complainant;  and  that  the  defendant,  Charles 
Dalton,  do  deliver  up  the  said  deed  to  be  canceled  by  the 
clerk  of  this  court. "^ 

Ficrther  ordered,  that  defendajit  pay  costs  of  this  suit,  to 
be  taxed,  and  that  execution  issue  therefor. 

§  18.  Errors  and  Defects.  Errors  and  defects  in  jiulo:- 
ments  or  decrees  require,  when  apparent,  appropriate  men- 
tion. But  the  defects  that  are  noticeable  are  mainly  confined 
to  matters  of  practice,  form,  etc.,  and  vital  defects,  from  their 
very  nature,  are  frequently  undisceruil^le.  Thus,  a  judgment 
against  an  individual  as  a  defendant  by  a  name  which  is  not  his 
in  contemplation  of  law,  can  not  be  enforced  a^-ainst  hiiii,^  and 

'Recitals  in  the  clecrco  of  a  court  clarod  inoperative,  ami  may  possibly 
of  inferior  jurisdiction  of  the  facts  do  harm  if  allowed  to  remain  in  de- 
necessary  to  give  jurisdiction  are  fondant's  hands:  Keomie  r.  Conrad, 
prima  facie  evidence  of  such  12  Phila.  (Pa.)  524.  A  decree  can- 
tacts,  subject  to  be  contradicted,  but  celling  a  deed  may  direct  the  clerk 
sufficient  j)er  se  to  uphold  the  pro-  to  enter  the  fact  on  the  margin  of 
ceeding  if  uncontradicted:  Belden  the  record  of  such  canceled  deed: 
r.  Meeker,  2  Lans.  (N.  Y.)  470.  Jones  v.  Porter,  59  Miss.  «V_N. 

^  Equity  will  generally  compel  an  ^  Farnham  r.   IliKlreth,  ;V2    Barb. 

instrument  to  be  delivered   up  for  277;  Thomas  r.  Desney,  o7  Iowa,  58. 
cancellation,  where  it  has  been  de- 
27 


418  ABSTRACTS    OF    TITLE. 

is  not  constructive  notice  of  a  lien  upon  liis  land.'  ISTor  will 
a  judgment  in  an  action  in  which  the  defendant  is  named  in 
all  the  proceedings  therein,  by  a  different  name  from  that  of 
a  particular  existing  individual,  be  of  any  avail  against  the  lat- 
ter, even  if  entered  up  against  him  by  his  real  name,  although 
process  was  in  fact  served  upon  him,  when  the  name  of  the  de- 
fendant in  such  process  was  not  his;  because,  unless  he  actually 
appeared  in  the  action,  no  jurisdiction  over  him  was  obtained 
therein  by  the  service  of  such  process.^  In  compiling  an 
abstract,  however,  the  two  matters  just  noted  would  not  be 
treated  alike.  In  the  former  case,  the  name  of  the  judgment 
debtor  not  being  the  same  as  the  party  whose  title  is  under 
consideration,  the  judgment  might  with  safety  and  propriety 
be  disregarded ;  as  where  the  name  of  the  land  owner  is 
"Freeman"  Jones,  and  that  of  the  judgment  debtor  "  Her- 
man" Jones. ^  But  in  the  latter,  tliough  the  judgment  debtor 
was  sned  by  a  wrong  name,  yet  inasmuch  as  judgment  was 
entered  against  him  by  his  true  name,  such  judgment  must 
substantially  appear,  together  with  so  much  of  the  proceed- 
ings, including  a  synopsis  of  the  process  and  return  as  will 
show  the  repugnancy  or  invalidity,  and  the  opinion  of  title 
should  specifically  pass  upon  the  facts  thus  exhibited.  A  more 
perplexing  question  arises  in  case  of  correct  Christian  and  sur- 
names, but  wrong  middle  initials.  The  authorities  are  all 
agreed  that  the  law  requires  and  recognizes  but  one 
Christian  name,  and  that  the  omission  or  insertion  of  middle 
initials  is  immaterial,*  yet  in  many  instances  the  middle  name 
is  the  only  clue  by  which  judgment  debtors  can  be  identified. 
In  populous  localities  it  is  not  always  expedient  to  show  all 
the  judgments  appearing  against  a  particular  name.  Say  the 
i:)erson  whose  title  is  under  consideration  is  named  John  R. 
Smith,  and   the   record   discloses  judgments  against  "  Johi? 

*  Thomas  I'.  Desney,  57   Iowa,  58.  277;  Thomas   v.   Desney,  57    Iowa 

^Moultonr.  De  Macarty,  6  Eob.  58;    Kennedy  v.   Merriam,     70  lU 

(N.  Y.)  470;  Ford  v.  Doyle,  37  Cal.  228. 

346.  *  Thompson  v.   Lee,  21    111.   242, 

^Farnham  v.  Hildreth,  32   Barb.  Bletch  v.  Johnson,  40  Jll.  116. 


JUDGMENTS    AND    DECREES.  419 

Sniitli,"  and  John  Smith  with  middle  initials  other  than  "  E": 
now  what  course  must  be  pursued  in  view  of  the  propositions 
last  enumerated?  To  insure  absolute  certainty,  every  judg- 
ment that  comes  within  the  rule  must  be  shown,  and  this  in 
many  cases  would  be  impracticable.  In  tiie  absence  of  posi- 
tive instructions,  therefore,  when  questions  of  doubt  arise, 
the  examiner  usually  looks  only  for  judgments  against  the 
particular  name  under  consideration,  and  in  his  certificate 
expressly  states  that  no  search  has  been  made  for  the  other 
names.' 

§  19.  Operation  and  Effect  of  Probate  Decrees.  A  de- 
cree of  a  probate  court  acting  within  the  sphere  of  its  juris- 
diction, is  conclusive  upon  all  those  to  whom  the  right  of  ap- 
peal is  given, ^  wdien  such  right  is  unexercised;  and  as  to  all 
matters  which  appear  from  the  record  to  have  been  adjudi- 
cated upon,^  and  all  such  decrees  where  the  court  has  jurisdic- 
tion of  the  subject-matter,  will  be  presumed  to  have  been 
made  upon  proper  notice  -and  formal  proceedings,  even 
though  such  proceedings  do  not  appear  of  record.* 

'  This  matter  is  further  considered  *Sparhawk  v.    Buell,    9  Vt.   41; 

in  the  chapter  devoted  to  "  Opinions  Pollock  v.  Buie,  43  Miss.  140.     But 

of  Title."  see   Martin  v.   Williams,   42  Miss. 

2  Lawrence  v.  Englesby,  24  Vt.  42.  210. 

»  Rix  V.  Smith,  8  Vt.  356. 


CHAPTER  XXVII. 


JUDICIAL   AND    EXECUTION    SALES. 


§1. 

Defined  and  distinguished. 

§13 

2. 

Execution  sales — Validity  and 
effect. 

14. 

3. 

Title  under  execution  sales. 

15. 

4. 

When  the  title  vests. 

16. 

5. 

The  writ. 

17. 

6. 

The  levy. 

18. 

7. 

Notice  of  sale. 

19. 

8. 

Proof  of  publication. 

9. 

Execution  sales  as  affected  by 

20. 

death. 

21. 

10. 

Exemption. 

.22. 

11. 

Judicial    sales — Validity    and 

effect. 

23. 

12. 

Title  under  judicial  sales. 

Rights  of  purcha.sei-s. 

Compelling  purchaser  to  ac- 
cept title. 

Order  of  confirmation. 

Effect  of  confirmation. 

Certificate  of  sale. 

Assign Dient  of  certificate. 

Proof  of  title  under  judicial 
and  execution  sales. 

Continued. 

Probate  sales. 

Nature  and  requisites  of  pro- 
bate sales. 

Abstract  of  probate  sales. 


§  1.  Judicial  and  Execution  Sales — Defined  and  Dis- 
tinguished.  No  inconsiderable  portion  of  the  real  estate  of 
the  country  changes  liands  every  year  through  the  media  of 
execution  and  judicial  sales,  meaning  by  sncli,  all  sales  and 
transfers  of  property  made  in  pursuance  of  the  orders,  judg- 
ments or  decrees  of  courts,  or  sales  made  to  obtain  satisfac- 
tion of  such  orders,  judgments  or  decrees.  The  term  "judi- 
cial sale"  is  applied  only  to  those  sales  made  in  conformity  to 
an  order  or  decree  directing  same,  and  requiring  a  subsequent 
confirmation  or  approval  by  the  court.^  "Execution  sales," 
though  based  upon  a  judgment,  are  made  under  the  statute, 

^Mr.    Freeman    classes     judicial  cial   pi-oceedings;    and  8,  all  other 

sales   as:    1,    those   made  in  chan-  cases  where  property  is  sold  under 

eery;  2,  those  made   by   executors,  an  order  or  decree  of  court  designat- 

administrators  and  guardians,  when  ing  such  property,    and  authorizing 

acting  by  virtue  of  authority  derived  its  sale:  Freeman  Void  Jud.  Sales, 

from  orders  of  sale  obtained  in  judi-  15. 


(420) 


JUDICIAL    AND    EXECUTION   SALES.  421 

for  the  recovery  of  a  specific  sum  in  satisfaction  of  the  judg- 
ment. "  The  cliief  differences  between  execution  and  judicial 
sales,"  says  Freeman,  "are  tlicse:  the  former  are  based  on  a 
general  judgment  for  so  much  money,  the  latter  on  an  order 
to  sell  specific  property;  the  former  are  conducted  b}^  an 
officer  of  the  law  in  pursuance  of  the  directions  of  a  statute; 
the  latter  are  made  by  the  agent  of  a  court  in  ]Mirsuance  of 
the  directions  of  the  court;  in  tlie  former  the  siieriff  is  the 
.vendor,  in  the  latter,  the  court;  in  tlie  former  the  sale  is  usu- 
ally complete  wlien  the  property  is  struck  off  to  tlie  highest 
bidder;  in  the  latter  it  must  be  reported  to  and  approved  by 
the  court."  '  Sales -made  under  an  execution  must  conform, 
in  all  respects,  with  the  rules  which  the  law  lays  down  for  the 
protection  of  the  debtor.  If  not  so  made,  they  ma\^  be  held 
irregular  and  void.  But  sales  made  under  the  decree  of  a 
court  are,  to  a  considerable  extent,  under  the  discretionary 
control  of  the  court,  which  often  sets  them  aside,  although 
no  error  or  irregularity  has  been  committed,  merely  for  the 
sake  of  an  advance  in  the  price;  or  which  may,  if  satisfied 
that  no  injustice  has  been  done,  disregard  irregularities  in  the 
conduct  of  the  sale,  and  confirm  the  action  of  the  master  or 
other  officer  making  same.^  An  erroneous  or  voidable  judg- 
ment or  decree  stands  good  until  reversed;  and  a  stranger 
who  purchases  property  sold  under  such  judgment  or  decree 
will  be  protected  in  his  purchase.^ 

§  2.  Execution  Sales — Validity  and  Effect.  It  is  a  fa- 
miliar principle  that  statutorj'  proceedings  to  divest  title  to 
real  estate  must  be  strictly  pursued;  and  a  substantial  de- 
parture from  the  requirements  of  the  statute  renders  the  jiro- 
ceedings  void.*  The  rule,  that  the  sherift'  is  presumed  to  have 
done  his  dut3'-  in  making  a  sale,  does  not  apply  where  the  fact 

»  Freeman  on  Void  Jud.  Sales,  14.  Ala.   204;  Sinnett  v.   Crallo,  4  W. 

2  Lasell  V.  Powell,  7  Coldw.  (Tenn.)  Va.  600. 

277.  <Stilhvell  v.  Swarthaut,  81   N.  Y. 

^  South  Fork  Canal  Co.  v.  Gordon,  109;  Havens  v.  Sherman,  42  Barl). 

2  Abb.  (U.  S.)  479;  McAusland    v.  636;  Surgi  v.  Colmer,  22  La.   Ann. 

Pundt,  INeb.  211;  Storm  v.  Smith,  20. 
43  Miss,  497;  GaiTstt  v.  Lynch,   45 


42  2  ABSTRACTS   OF    TITLE. 

that  tlie  sale  was  in  violation  of  the  statute,  is  apparent  on 
the  face  of  the  record  through  which  the  title  is  claimed,' 
though  the  v^alidity  of  a  purchaser's  title  will  not  be  affected 
by  the  failure  of  tlie  officer  to  make  a  seizure  in  the  mode,  or 
bj  the  steps,  prescril;)ed  by  the  statute,  when  such  failure 
consists  of  mere  irregularities;^  his  power  to  sell  comes  from 
the  judgment  and  execution,  and  is  not  to  be  measured  by 
his  proceedings  under  the  writ.'*  Greater  strictness  is  re- 
quired in  conducting  the  sale,  the  details  of  which  are  regu- 
lated by  express  provisions  in  all  the  States,  and  non- 
compliance in  this  particular,  as  by  offering  land  in  gross  in- 
stead of  in  parcels,  etc.,  will  be  sufficient  to  vitiate  same,  and 
the  sale  may  be  set  aside,  even  as  against  a  stranger  who  has 
bought  the  property  and  paid  the  price.*  One  who  buys  at 
execution  sale  is  not  an  innocent  purchaser  in  the  full  mean- 
ing of  the  term,  but  takes  the  estate  subject  to  all  equities  ex- 
isting against  it  at  the  time  of  the  purchase,  and  is  chargeable 
with  notice  of  all  defects  in  the  execution  debtor's  title,  to- 
gether with  the  value  of  the  property  and  of  its  situation,  and 
of  the  legal  rules  bearing  upon  the  transaction.^  Where, 
however,  a  purchaser  looks  to  the  I'ecord  and  finds  there  a 
valid  subsisting  judgment,  and  buys  in  good  faith,  pays  the 
price  and  receives  a  deed,  he  takes  a  title  which  is  valid  until 
the  sale  is  set  aside  and  the  purchase  money  refunded.®  The 
doctrine  of  caveat  emptor  applies  to  every  purchaser  at  a 
sheriff's  sale.  He  buys  at  his  peril,  and  succeeds  only  to  the 
right  and  title  which  the  defendant  in  execution  had  at  the 
time  the  iudo^ment  was  rendered  ao^ainst  him/  The  sellinoj 
officer  has  no  power  to  warrant  the  title  and  the  purchaser  is 

1  Piel  V.  Brayer,  30  Ind.  332.  ^  Richardson  v.  Wicker,  74  N.  C. 

2 Wood     V.    Morehouse,   1    Lans.  278;  Allen  i\  McGaughey,  31   Ark. 

(N.  Y.)  405;  Stewart  v.  Pettigrew,  252;  Morris  v.  Robey,  73  111.  432. 

28  Ark.  372;  Curd  v.  Lackland,   49  ^  Owen  v.  Navasota,  44  Tex.  517; 

Mo.  451.  Wing  V.  Dodge,  80  111.  564. 

3  Blood  I).  Light,  38  Cal.  649.  ^Miller  «.   Wilson,   32   Md.  297; 

*Vass  V.  Johnson,    41     Ind.    19;  Walke    v.    Moody,    65  N.    C.   599; 

Browne  v.  Ferrea,  51  Cal.  552;  ]\Ior-  Frost  v.  Bank,  70  N.  Y.  553;  Bar- 

ris  V.  Robey,  73   111.  462.     Compare  ron  r.  MuUin,  21  Minn.  374;  Holmes 

Eaton  V.  Ryan,  5  Neb.  47.  v.  Shaver,  78  111.  578. 


JUDICIAL    A^'D    EXECUTION    SALES.  423 

presumed  to  have  examined  same  and  to  know  what  he  is  ac- 
quiring. 

§  3.  Title  under  Execution  Sale.  A  purcliaser  at  an 
execution  sale  succeeds  to  all  the  rights  which  the  judgment 
debtor  had/  and  takes  the  same  title  possessed  by  him  with  all 
its  imperfections  and  infirmities.^  It  is  the  policy  of  the 
law,  however,  to  uphold  and  protect  such  titles,  and  though 
the  deed  purports  to  convey  only  "  the  right,  title  and  inter- 
est "  which  the  judgment  debtor  possessed  or  had  in  the  land 
at  date  of  the  judgment,  yet  the  purchaser  under  such  a  deed 
will  take  the  entire  title  as  against  prior  unrecorded  deeds  or 
equities  of  which  he  had  no  notice.'  The  title  so  acquired 
may  be  sold  and  conveyed,  even  pending  an  appeal,  and  the 
reversal  of  the  judgment  for  error  where  the  court  had  juris- 
diction of  the  subject-matter  and  the  parties,*  will  not  ma- 
terially affect  same,  for  it  is  a  settled  principle  of  the  com- 
mon law  coeval  with  its  existence,  that  the  defendant  shall 
have  restitution  of  the  purchase  money,  and  the  purchaser 
shall  hold  the  property  sold,  except  whore  the  plaintltf  in  the 
judgment  becomes  purchaser,  and  still  holds  the  title.* 

§  4.  "When  the  Title  Vests.  In  all  cases  where  a  redemp- 
tion is  permitted,  the  legal  estate  of  the  judgment  debtor  is 
not  divested  by  the  sale  until  after  the  period  allowed  for  re- 
demption, nor  even  then,  unless  the  sale  has  been  consummated 
by  a  deed  from  the  sheriff.  Until  the  execution  of  such  deed 
the  title  of  the  purchaser  is  inchoate,  for  by  the  simple  act  of 
purchase  he  acquires  no  legal  estate  in  the  land,  but  only  a 
right  to  an  estate  which  may  be  perfected  by  conveyance.'^ 
Prior  to  the  sheriff's  deed,  the  debtor  is  entitled  to  the  posses- 

'  Morgan    v.  Bonso,  53  Mo.   219;  In  this  event  the  sale  is  upually  void 

Williams  v.  Amory,  10  Mass.  186.  under  special  statutes;  see  Hiitohens 

2  Hicks  V.  Skinner,  71    N.  C.  5:>9;  v.  Doe,   3    Ind.    52S;   hut  compare 

Cameron    v.    Logan,  8    Iowa,    434;  Gossom  v.  Donaldson,    18   B.  Mon. 

Bassett  v.  Lockar.l,  60  111.  164.  (Kv.)  230. 

*  Earpham  t\  Little,  59  111.  509.  ^Smith  r.  Colvin,  17    Hnrh.   157; 

♦Feaster  v.  Fleming,  56  111.  457;  Evertson  r.  Sawyer,  2  Wend.    507; 

Hobson  V.  Ewan,  62  111.  146.  Bowman  r.  The  JVople,  81  111.    24^.; 

^  Fergus  r.  Woodworth,  44111.  374;  and  see  Kucker   ».  f  soif,    49    111. 

Mansfield  v.  Iloagland,  46  111.  859.  871. 


424  ABSTRACTS    OF   TITLE. 

sion  and  profits  of  the  land,  while  the  equity  held  by  the 
pnrcliaser  is  a  lien  upon  the  land  for  the  amount  of  his  bid 
and  interest.^ 

§  5.  The  Writ.  It  is  a  familiar  principle  that  the  execu- 
tion must  conform  substantially  to  the  judgment,  or  the 
sale  will  be  void,^  yet  it  is  not  customary  to  more  than  allude 
to  this  instrument  in  the  abstract  of  an  execution  sale,  unless 
special  instructions  are  given  otherwise.  Its  date,  number 
and  import  are  usually  noticed,  and  in  case  of  a  venditioni 
exponas  a  brief  allusion  to  lands  specifically  described.  Nor 
does  a  more  extended  notice  ordinarily  seem  necessary,  as  the 
purport  and  effect  of  the  writ  are  generally  recited  in  other 
of  the  proceedings  under  it.  Wliere  there  is  an  insufficient 
teste,  as  where  the  seal  of  the  court  is  omitted,^  or  where  there 
is  a  want  of  correspondence  with  the  judgment,  such  defects 
should  be  shown,  as  a  valid  execution  is  one  of  the  inteirral 
links  to  support  the  title,  but  mere  clerical  variance  will  not 
invalidate,*  nor  afford  ground  for  collateral  impeachment.^ 
An  execution  issued  and  levied  in  the  name  of  deceased 
plain tifts,  or  against  deceased  defendants,  will  be  void  in 
some  States,  but  may  be  effectual  in  others,  provided  certain 
statutory  provisions  are  complied  with."* 

§  6.  The  Levy.  A  levy  of  lands  is  made  by  an  indorse- 
ment thereof  upon  the  writ,'  there  being  no  such  thing  as  seiz- 
ure of  the  premises.  The  sheriff,  when  levying  on  real  estate 
does  not  disturb  the  possession  of  the  debtor  or  even  his  right 
of  possession,  and  this  constitutes  the  chief  distinction  between 
a  levy  on  real  estate  and  on  personal  prop-rty.*  The  decisions 
as  to  what  constitutes  a  good  levy  are  numerous,  and  gener- 

'  Vangbn  v.  Ely,  4  Barb.  159.  Riddle  v.  Bush,  27  Tex.  675;  Wood- 

^ Crittenden  v.   Leitensdorfer,   35  ley  ».  Gilliam,  67  N.  C.  237. 

Mo.  239;  Hightower  v.  Handlin,  27  ^  Sutler  v.  Haynes,  3  N.  H.  21. 

Ark.  20;  Hastings  v.  Johnson,  1  Nev.  ^  Hildreth  v.  Thompson,  16   Mass. 

613.  191;  Isleokv.  Bunker,  33  Iowa,  169; 

^This  has  been  held  a  fatal  defect  Bowen  v.  Bonner,  45  Miss.  10. 

which  will  invalidate  the  deed:  Ins.  '^  Rorer  Jud.  and  Ex.    Sales,  280, 

Co.  V.  Hallock,  6  Wall.  556;  Davis  v.  and  cases  cited. 

Ransom,  26  111.  100.  « Dement  v.    Thompson,   14    Re- 

*Whoaton  v.   Sexton,    4   "Wheat.  porter,  145. 
503;  Jackson  v.  Spink,  59    111.  404; 


JUDICIAL    AND    EXECUTION    SALES.  425 

ally  harmonious  in  declaring  that  the  land  must  be  described 
with  sufficient  certainty  to  enable  it  to  be  identified  without 
other  evidence,Mjut  if  defective  in  this  respect  it  will  be  cured 
by  a  correct  deed."  In  an  abstract  of  the  sale,  it  is  regarded 
as  a  minor  detail  which  may  be  briefly  noticed  in  the  return 
of  the  execution,  but  the  certificate  and  deed  su])ply  in  bet- 
ter shape  the  necessarj-  information  Goncerning  same.  "  And," 
observes  Mr.  Rorer,'^  "  though  the  ])urchaser  relies  on  the  judg- 
ment, execution,  the  levy  and  the  deed,  yet  wlien  the  pur- 
chaser at  sheriff's  sale  shows  an  autliorized  execution  and 
deed,  a  correct  levy  and  notice  is  presumed.  A  judgment, 
execution  and  deed  from  the  sheriff"  are  sufficient  to  support 
the  title  of  a  purchaser  without  ])roof  of  a  levy,  though  the 
return  be  incorrect,  or  there  be  no  return."'  * 

§  7.  Notice  of  Sale.  It  is  a  general  statutory  provision 
that  no  real  estate  shall  be  sold  by  virtue  of  any  execution 
except  at  public  sale,  nor  unless  the  time  and  place  of  holding 
such  sale  shall  have  been  previously  given  in  prescribed 
methods.  These  methods  generally  consist  in  putting  up 
written  or  printed  notices  and  by  advertisement  of  same  in 
some  newspaper,  which  notices  must  describe  the  parties, 
property,  terms,  etc.,  and  this  applies  as  well  to  judicial  as  to 
execution  sales.^  This  notice  it  is  well  to  briefly  abstract, 
sliowing  only  the  legal  requirements  in  a  connected  narrative 
form,  and  when  proof  of  publication  is  appended,  show  this 
as  well.  The  proof  of  publication  is  afforded  by  the  publish- 
er's affidavit  of  same.  The  statutes  requiring  notice  of  sale 
are  said  to  be  directory  merely,  and  failure  to  give  such  no- 
tice will  not  avoid  the  sale  so  as  to  defeat  the  title  of  an  inno- 

'  Chadbonrne  v.  Mason,   48    Me.  Entire  r.  Dnrliam,  7    Ired.    L.  1-"»I ; 

389;    Gault  v.   Woodbridge,  4  Mc-  Jackson  v.  Younf?,  5  Cow.  2G9:  Tliil- 

Lean,  329.  lips  v.  Coffee,  17  111.  154. 

2  Hopping  V.   Burnani,  2  Greene  ^  Levy  on  attachment  is  governed 

(la.),  39.  by  different  principles,  and  a  return 

8  Rorer  Jud.  and   Ex.  Sales,  292,  or  certificate  filed  is  of  vital  inipor- 

citing  Brooks  p.  Rooney,  11  Ga.  423;  tnnce  in  preserving  the  lion.   See  Lis 

Hopping  r.  Burnani,  2  Greene,  39;  Pendens  and  Attachni:>nts. 

Evans  v.  Davis,  3  B.  Mou.  344;  Mc-  ^  Olcott  v.  Robinson,  20  Barb.  148. 


426 


ABSTRACTS    OF    TITLE. 


cent  purchaser  not  liimsclf  in  fault;'  hence,  a  passing  allusion 
sufficient  to  show  its  purport,  seems  all  that  is  necessary  in 
regard  to  the  notice.'''  In  the  general  synopsis  of  sale  it  may 
be  mentioned  in  this  manner: 

Printed  copy  of  notice  of  sale^  gives  title  of  court  and 
cause,  describes  the  said  premises,  and  fixes  on  Sept.  7, 1881^ 
at  11  o'' clock  a.  m.,  at  the  east  door  of  the  Court  House,  Chi- 
cago, III.,  and  for  cash,  as  the  time,  place  and  terras  of  said 
sale. 

%  8.  Proof  of  Publication.  Appended  to  the  notice  of  sale 
will  usually  be  found  an  affidavit  by  the  publisher  of  a  news- 
paper, to  the  effect  that  the  notice  was  duly  published  accord- 
ing to  law,  and  this  affidavit  it  is  well  to  show  in  brief  terms. 
The  abstract  follows  the  original,  and  its  material  points  may 
be  noted  as  follows: 

Appended  to  the  foregoing  is, 

Affidavit  1       Suhscrihed  and  sicornto,June 

hj  ^       1,  1883. 

Myra   Bradwell,  Presi-   \-     Recite8,that  a  notice, ''■of  which 

dent   of   the    Chicago   \  the  annexed  printed  slip  is  a  true 

Legal  Neios  Co.  J  copy^''  was  duly  published  in  the 

Chicago  Legal  JSfev^s,  a  weekly 
newspaper  of  general  circulation,  printed  and  published  in 
Cook  County,  III.,  for  the  period  of  three  successive  weeks; 
that  the  date  of  the  first  publication  ivas  Jan.  6,  1882;^  that 
the  date  of  the  last  publication  was  Jan.  20.,  1883. 

A  defect  in  the  certificate  of  publication,  in  not  stating  the 


1  FreeiB.  Ex.  §  284.  With  regard 
to  probate  sales  a  more  strict  rule 
seems  to  prevail  and  notice  is  held 
essential :  Blodget  v.  Hitt,  29  Wis. 
169;  Mountour  v.  Purdy,  11  Minn. 
384. 

^Defective  notice  does  not  render 
the  sale  void,  or  even  voidable  un- 
less the  purchaser  has  notice  of  the 
irregularity.  Purchasers  in  good 
faith  can  not  be  affected  b3-such  non- 


compliance with  the  statute:  Osgood 
V.  Blackmore,  59  111.  261;  Watt  v. 
McGalliard,  67   111.  513. 

^  It  may  be  well  to  obser^-e  that  the 
date  of  publication  does  not  fall  on 
Sunday  as  this  would  invalidate  the 
notice;  Smith  v.  Wilcox,  24  N.  Y. 
353;  Scammon  v.  Chicago,  40  111. 
146;  Shaw  V.  Williams  (Sup.  Ct. 
Ind.  1888.) 


JUDICIAL    AND    EXECCTION   SALES.  427 

first  and  last  daj-s  of  the  publication,  has  been  held  to  be  cured 
by  a  recital  in  the  decree  that  "  it  appearing  to  the  court  that 
notice  according  to  law  was  given,"  etc,  the  presumption 
being  tliat  the  court  received  other  evidence  than  the  certifi- 
cate, of  tlie  date  of  the  publication.'  It  must  be  observed 
further,  that  the  certificate  or  afiidavit  of  publication  can  only 
be  made  by  the  publisher  or  his  authorized  agent,'^  and  a  cer- 
tificate signed  "  John  Wentworth,  publisher,  by  Reed,"  has 
been  held  insufficient,^  In  this  instance  the  certificate  did  not 
purport  to  be  given  by  the  publisher,  but  by  another  person 
who  used  his  name  but  failed  to  show  his  authority.  Where 
a  newspaper  is  published  by  a  firm  or  by  a  corporation,  a  cer- 
tificate by  one  of  the  ]xirtners,  or  by  an  officer  of  the  corpora- 
tion, when  such  certificate  shows  the  official  connection  of  the 
person  making  it  with  the  newspaper,  will  usually  be  sufficient,* 
while,  as  a  fundamental  principle,  an  affidavit  can  not  be  made 
by  proxy. 

§  9.  Execution  Sale  as  Affected  by  Death,  The  death  of 
a  plaintiff"  after  judgment  and  before  execution  issued  is  of 
comparatively  little  moment  in  respect  to  title,  as  his  personal 
representatives  may  sue  ont  execution  in  the  name  of  such 
deceased  plaintiff",  or  in  their  official  caj^acity,  as  the  statute 
may  direct.*  If  the  defendant  dies  after  judgment,  the  plaint- 
iff" may  sue  ont  execution  in  the  mode  prescribed  by  statute, 
or,  if  permissible,  proceed  by  the  common  law  scire  facias. 
But  in  the  event  of  the  death  of  either  party  prior  to  cxecu- 

J  Moore  r.  Neil,  39  111.  2")6.      The  States,    (hat  when   the   affi.lavit  of 

foregoing  example,  though  inserted  publication  is  defective,  an  amended 

in  connection  with  execution  sales  is  afR(hivit   may  be  filed   according  to 

that  also  employed  in   all  dcci-etal  the   truth   of  the  case:     Bunce   r. 

sales  as  well,   either  in  chancery  or  Reed,  16  Barb.  ;U7. 

in  probate,  and  must  be   shown  in  ^  It  is  a  familiar  provision   of  the 

the  same  manner  in  expositions  of  statute  that  liens  created  by  law    do 

such  sales.  not  abate  by  reason  of  the  death  of 

2  This  matter  is  statutory;  usually  any  plaintitf  or  plaintiils,    but  that 

the  proof  of    publication   must  be  same  shall  survive  in  favor  of  tho 

made  by  the  "printer  or  publisher,"  executor    or    administrator,    whose 

»  Fox  V.  Turtle,  55  111.  877.  duty  it  shall  be  to  have    the   judg- 

*  Fox  V.   Turtle,  55   111.    377.     It  nn-nt  enforced:  Durham   r.  lleaton, 

would  seem  to  be  the  rule  in  some  28  111.  20-4. 


428  ABSTRACTS   OF   TITLE. 

tion  to  render  valid  a  sale  under  the  judgment,  the  same  must 
be  revived  by  scire  facias^  or  an  execution  must  be  sued  out 
in  the  mode  prescribed  by  statute,  which  usually  provides  for 
the  filing  or  recording,  in  the  court  in  which  the  judgment 
exists,  of  the  letters  testamentary  or  of  administration,  after 
which  execution  may  issue  and  proceedings  be  had  thereon,  in 
the  name  of  the  executor  or  administrator  as  such/ 

§  10.  Exemptions.  Though  all  the  real  estate  of  a  judg- 
ment debtor  may  be  primarily  liable  to  seizure  and  sale  on 
execution,  a  statutory  right  has  been  given  to  him  in  q,\q\'y 
State,  to  relieve  a  portion  of  same  from  this  burden,  but  the 
exercise  of  this  right  is  largely  dependent  on  intention. 
When,  therefore,  title  is  claimed,  or  sought  to  be  adduced 
through  the  medium  of  an  execution  sale,  and  the  abstract 
furnishes  no  information,  an  inquiry  should  always  be  made 
concerning  the  status  of  the  land  with  reference  to  the 
statutory  right  of  exemption.  The  debtor  is  not  always 
obliged  to  assert  his  right  at  the  time  of  levy,  neither  will  a 
subsequent  sale  impair  same,  and  the  question,  when  such  a 
state  of  facts  may  exist  under  the  statute,  becomes  of  con- 
trolling importance.  A  sale  of  the  homestead  under  execution 
being  inoperative,  the  purchaser  thereat  takes  no  title.^ 

§  11.  Judicial  Sales — Validity  and  Effect.  A  sale  of  land 
under  a  judgment  or  decree,  must  be  made  in  the  manner  and 
on  the  terms  prescribed  in  such  judgment  or  decree;*  and  the 
confirmation  by  the  court,  of  the  report  of  the  oflicer,  can  not, 
it  seems,  cure  the  invalidity  of  sale  not  so  made.*   But  a  sale  will 

'  Scammon  v.  Swartwout,  35   111.  sued  in  the  name  of  the  deceased 

326;  Brown  v.  Parker,  15  111.   307.  plaintiff,  and  not  in  the  name  of  his 

In  this  case,  a  sheriff's  deed  was  re-  personal  representative.     Held,  that 

lied    on    for   title.     The    execution  the  execution,    and  all  proceedings 

under  which  the  sale  was  made  was  under  it,  were  absolutely  void, 

not  issued  until  several  yen rs   after  ^Conklin  r.  Foster,  57  111.  104. 

the  death  of  the  judgment  creditor,  ^  Langsdale  v.  Mills,  32  Ind.  380. 

without  iirst  reviving  the  judgment  *  Bethel  v.   Bethel,  6   Bush  (Ky.), 

in  favor  of  the  personal  representa-  65;  but  this  will  only  apply  to  gross 

tive,  or  recording  in  court  his  letters  departures,  mere  irregularity  is  gen- 

of  administration,  and  was  also  is-  erally  cured  by  confirmation:  Wil- 


JUDICIAL    AND    EXECCTIOX    SALES. 


429 


will  not  be  disturbed  unless  the  party  suin<^  can  sliow  an  in- 
jury resultinf^  to  him  from  the  sale,' as  well  as  an  interest  in 
the  subject-matter,"  while  it  is  always  the  policy  of  the  law  to 
nphold  judicial  sales,  and  to  protect  the  rights  of  purchasers 
under  them ;^  and  althoui^h  the  judgment  or  decree  may  be 
reversed,  yet  all  rights  acquired  at  a  judicial  sale  while  the 
decree  or  judgment  was  in  foi'ce,  and  which  they  authorized, 
will  be  protected.  It  is  sufficient  for  the  buyer  to  know  that 
the  court  had  jurisdiction  and  exercised  it,  and  that  the  order 
on  the  faith  of  which  he  purchased  was  made,  and  author- 
ized the  sale,*  for  where  the  court  has  jurisdiction  of  the 
parties,  and  of  the  subject-matter  of  the  litigation,  no  matter 
how  erroneously  it  may  thereafter  proceed,  within  the  bounds 
of  its  jurisdiction,  its  decree  will  be  conclusive  until  re- 
versed or  annulled  in  some  direct  proceeding,  and  the  title 
to  property  acquired  at  a  sale  under  such  decree,  by  a  stranger 
to  the  record,  will  be  upheld,  although  the  decree  itself  may 
afterward  be  reversed  for  manifest  error.^ 

§  12.  Title  under  Judicial  Sale.  The  title  acquired  under 
a  sale  by  order  of  the  court  differs  in  no  material  resi)ect  from 
that  where  the  sheriff  is  the  vendor.  The  pui'chaser  is  en- 
titled to  the  interest  of  all  the  parties  to  the  suit,  and  to  the 
interest  of  those  who  have  purchased  pendente  life  from  any  of 
the  parties.®  lie  acquires  no  new  rights,  nor  does  the  fact 
that  the  court  is  regarded  as  the  vendor^  confer  upon  him  any 


liamson  v.  Berry,  8  How.  546;  Koeli- 
ler  V.  Ball,  2  Kan.  160.  Void  sales, 
whether  execution  or  judicial,  are 
classed  by  Mr.  Freeman,  as  (1)  those 
which  are  void  because  the  court 
had  no  authority  to  enter  the  judg- 
ment or  order  of  sale;  (2)  those 
which,  though  based  on  a  valid 
judgment  or  order  of  sale,  are  invalid 
from  some  vice  in  the  subsequent 
proceedings:  Freeman  Void  Jud. 
Sales,  15. 

>  Matter  of  Gilmer,  21  La.  Ann. 
589. 

2  Nixon  r.  Cobloigh,  52  111.  3«7. 

«  Dorsey  v.  Kendall,  8  Bush  (Ky.), 


294;  Allman  v.  Taylor,  101  III.  185. 

*Gray  v.  Brignardello,  1  Wall. 
627;'  Fergus  v.  Woodworth,  44 
111.  374. 

^  Allman  v.  Taylor,  101  111.  185. 

*  Harry  man  v.  Starr,  56  Md.  63. 

''  In  all  sales  made  under  the  au- 
thority of  a  decree  in  equity,  the 
court  is  the  vendor,  and  the  couunis- 
sioner  making  the  sale  is  the  mere 
agent  of  the  court.  The  decree  is 
the  warrant  of  authority  to  sell: 
Tarrat  r.  Neligh,  7  Neb.  546; 
Thompson  v.  Craighead,  32  Ai"k. 
291. 


430  ABSTRACTS    OF    TITLE. 

superior  equities.  An  equity  court  does  not  insure  the  title 
to  real  property  sold  under  its  decrees,'  and  the  purchaser 
buys  with  full  knowledge  of  all  defects  and  pre-existent  liens.'^ 
Prior  to  confirmation  he  has  no  independent  rights,  but  is  re- 
garded as  a  mere  proposer;^  after  confirmation  his  rights  be- 
come vested,  and  the  sale  will  not  be  set  aside  except  for 
fraud,  mistake,  surprise,  or  other  cause  for  which  equity  would 
give  relief  if  the  sale  had  been  made  by  the  parties  in  inter- 
est instead  of  by  the  court.*  Neither  will  the  title  of  an  in- 
nocent purchaser,  a  stranger  to  the  record,  be  affected  by  the 
subsequent  reversal  of  the  decree  for  iri-egularity;^  but  where 
the  purchaser  was  an  original  plaintiff  in  the  suit,  or  an  as- 
signee of  the  judgment  or  decree,  he  acquires  only  a  defea- 
■  sible  title,  which  may  be  defeated  by  a  subsequent  reversal, 
and  the  same  rule  obtains  whether  the  reversal  is  based  on  an 
amendable  defect  or  on  one  that  is  incurable.* 

§  13.  Rights  of  Purchaser.  A  purchaser  at  a  judicial 
sale  has  a  right  to  presume  that  it  is  conducted  according  to 
the  provisions  of  law,^  and  proceedings  in  court,  in  a  mat- 
ter in  which  it  has  jurisdiction,  will  be  presumed  to  be  regu- 
lar; and  a  purchaser,  at  a  sale  made  by  order  of  such  court, 
is  not  bound  to  look  further  back  than  the  judgment  or  de- 
cree, and  the  legal  effect  it  may  have  on  the  title  which  is  the 
subject  of  inquiry.*  Such  judgment  is  a  complete  protection 
to  a  purchaser  under  it,®  except  as  to  matters  which  reach  the 
jurisdiction  of  the  court. 

§  14.  Compelling  Purchaser  to  take  Title.  A  sale  made 
by  order  of  a  court  of  equity  is,  until  final  ratification,  an  ex- 

'  Gunton  v.  Zantzinger,  3  MacAr-  198. 

thur  (D.  C),  262.  ^McDonald  r.  Life    Tns.    Co.,  65 

2  Housley    v.  Lindsay,    10  Heisk.  Ala.  358;  Fishback  v.   Weaver,   34 

(Tenn.)   651;  Guynn  v.    McCauley,  Ark.  569. 

32  Ark.  97;  Capehart  v.  Dowery,  10  'Browning  v.  Howard,    19  Mich. 

W.  Va.    130;  Watson  v.    Hoy,   28  323. 

Gratt.  (Va.)  698.  *  Fleming  v.  Johnson,  26  Ark.  421; 

3 State  ».  Roanoake  Nav.   Co.,  86  Diigan  r.  Follett.  100  111.  581;   AU- 

N.  C.  408.  man  v.  Taylor,  101  111.  185. 

♦Berlin  r.  Melhorn,  75  Va.  639.  » Hening  r.  Punnett,   4  Daly  (N. 

6  Sutton  V.  Schonwald,  86  N.  C.  Y.).,  543. 


JUDICIAL    AND    EXECUTION   SALE9. 


431 


ecutorj  contract,  open  to  olijcction,  and  not  to  be  enfurceJ  if 
the  enforcement  would  be  inequitable  and  ap^ainst  good  con- 
science.* A  ]>iirchaser  can  not  be  compelled  to  accept  a  doubt- 
ful title,  nor  one  which  the  court  can  not  warrant  to  him;  tlie 
question  being,  not  whether  the  title  is  good,  but  whetlier  it  is 
clearly  so.  A  title  is  doubtful  when  its  condition  invites  litiga- 
tion. When  doubts  are  raised  by  extrinsic  circumstances, 
which  neither  the  purchaser  nor  the  court  can  satisfactorily 
investigate,  for  want  of  means  to  do  so,  the  court  will  refuse 
to  impose  same  on  the  purchaser.  When  the  means  of  in- 
quiry are  offered,  and  the  result  satisfactory, performance  will 
be  enforced."  But  all  objections  must  be  made  before  the  sale 
is  confirmed,*  for  after  confirmation  no  relief  will  be  granted 
upon  the  ground  of  defect  of  title;*  he  can  not  have  a  rebate 
of  price  on  discovering  liens  unknown  to  him  before  coiilir- 
mation,^  and  though  the  title  he  may  procure  from  the  cuurt 
may  be  worthless,  he  can  not  be  relieved  from  payment  of  the 
price.*  A  jMirchaser  caTi  not,  after  confirmation,  set  up,  as  a 
ground  of  relief  against  his  purchase,  facts  known  to  him  be- 
fore it  was  com]>leted;^  and  one  who  buys  without  inquiry  or 
examination  will  not  be  relieved  because  of  a  misa])prelien- 
sion  as  to  the  legal  effect  of  the  decree  for  sale,  and  the  char- 
acter and  extent  of  the  title  he  will  acquire;  such  mistake 


1  Hunting  v.  Walter,  33  Md.  60; 
Onnsby  v.  Terry,  6  Bush  (Ky.),  553; 
Mullins  V.  Ailcen,  2  Helsk.  (Tenn.) 
535. 

2  Kostenbo.ler  v.  Spotts,  80  Ta.  St. 
430;  Monaghan  v.  Small,  6  Rich  (S. 
C),  177;  Graham  v.  JJleakie,  2  Daly 
(N.  y.),  55. 

"Long  V.  Weller,  29  Gratt.  (Va.) 
347. 

*  Farmers'  Bank  v.  Peter,  13  Bush 
(Ky.),  591.  But  the  general  rule, 
that  objections,  by  purchasers,  to  ju- 
dicial sales,  for  defects  of  title,  must 
be  made  before  the  sale  is  confirmed 
by  the  court,  and  that  olijeclions  af- 


terward come  too  late,  docs  not  ap- 
ply to  the  equity  of  a  purchaser  aris- 
ing from  after  discovered  mistakes, 
fraud,  or  other  like  matter:  Watson 
V.  Hoy,  28  Gratt.  (Va.)  698.  But 
if  mistake  is  relied  on  it  must  be  the 
mistake  of  both  parties:  Long  r. 
Weller,  29  Gratt.  (Va.)  347.  And 
see  Berlin  r.  Melhorn,  75  Va.  639. 

^  Farmers'  Bank  r.  Peter,  13  Bush 
(Ky.),  591;  Curtis  v.  Root,  28  111. 
367. 

*Capehart  v.  Dowcrj',  10  W.  Va. 
130. 

'  Spence  v.  Armour,  9  lleisk. 
(Tenn.)  167. 


432  ABSTRACTS    OF   TITLE. 

beino:  a  mistake  of  law,  and  due  to  tlie  carelessness  of  the 
purchaser  hiniselfV 

§  15.  Order  of  Confirmation.  After  tlie  sale,  and  before 
the  execution  of  a  conveyance,  in  all  cases  of  judicial  sales, 
and  frequently  of  execution  sales  as  well,^  a  return  or  report 
of  sale  must  first  be  made  to  the  court  which  ordered  the 
same,  which  upon  examination  approves  and  confirms  the  ac- 
tion of  the  officer  who  made  the  sale.  Until  this  has  been 
done  the  sale  is  incomplete,  and  confers  no  rights  on  the  pur- 
chaser.^ In  judicial  sales  a  confii-mation  is  rendered  neces- 
sary from  the  fact  that  the  court,  and  not  the  officer  making 
the  sale,  is  the  vendor,  and  conlirmation  is  regarded  as  the 
final  consent;  but  even  where  there  has  been  no  confirmation, 
if  a  deed  has  been  made  and  delivered,  and  tliere  has  been  a 
possession  and  holding  thereunder,  time  may,  if  sufficiently 
long,  operate  to  contirni  and  ratify  the  sale,  and  perfect  the 
title  of  the  purchaser.* 

§  16.  Effect  of  Confirmation.  The  order  of  confirmation 
cures  all  irregularities  in  the  mode  of  making  the  sale,^  but 
adds  nothing  to  the  authority  of  the  officer  who  made  it.  If 
the  sale  was  without  authority,  the  ratification  of  it  by  the 
court  must  be  considered  as  having  been  given  inadvertently,® 
or,  if  fiiven  deliberatelv  and  on  a  full  examination  of  the  facts, 
must  still  be  regarded  as  an  unauthorized  proceeding.^  So, 
too,  where  the  court  has  exceeded  its  jurisdiction  in  ordering 
the  sale,  a  confirmation  would  have  no  effect,  for,  the  sale  be- 
ing void,  there  was  no  subject-matter  upon  which  the  order 

^Hayes  4'.  Stiger,  29  N.  J.  Eq.  196;  approval,  he  is  ordered    to  make  a 

Morns  v.  Hog'le,  37  111.  150;  Joliii-  deed,  no  order  confirming  the  deed 

son  V.  Baker,  'HA  111.  9:5.  is  necessary:  McHany  v.  Schenk,  88 

^  Confirmation  of  execution  sales  is  111.  357. 

not  necessary  at  common  law,  but  is  *Gowan  v.   Jones,  18  Miss.  164; 

sometimes  rendered  so  by  statute.  Rorer  on  .Tud.  and  Ex.  Sales,  57. 

^Buseyv.  Hardin,  2  B.Mon.(Ky.)  ^goehler    v.    Ball,   2    Kan.    172; 

407;  Bank  v.  Humphreys,  47  HI.  227;  Hotchkiss  v.  Cutting,  14  Minn.  537; 

Williamson  v.  Berry,  8   How.  547;  Conover  v.  Musgrove,  68  111.  58. 

Thorn  V.  Ingram,  25  Ark.  52;  Valle  «  Wills  v.  Chandler,  1  McCrary  (C. 

V.  Fleming,  19  Mo.  454.     Approving  Ct.),  276. 

the  sale  makes  the  officer's  act  that  ''  Shri^er's  Lessee  v.  Lynn,  2  How. 

of  the  court,  and  where,  upon  such  60. 


JUDICIAL    AND    EXECUTION    SALES.  433 

of  confirmation  could  act.  If  tlie  court  had  no  jurisdiction 
to  order  tlie  sale,  it  had  none  to  confirm  it,  and  where  there  is 
no  power  to  render  a  judgment  or  to  make  an  order,  tliere  can 
be  none  to  confirm  or  execute  it.'  But  where  these  questions 
do  not  arise  it  is  presumptive  evidence  that  the  sale  was  reg- 
ularly and  properly  made,  and  questions  arising  under  it  can 
not  be  presented  colhitorally.^ 

§  17.  Certificate  of  Sale.  Where  a  contract  for  the  sale 
of  land  is  executory  on  both  sides,  it  is  necessary  that  same 
should  be  evidenced  by  a  memorandum  in  writing,  signed  by 
the  vendor,  and  sheriffs'  sales  form  no  exception  to  the  gen- 
eral rule.'  If  no  certificate  or  deed  is  given  to  the  purchaser, 
and  no  memorandum  of  the  sale  is  made  on  striking  off  the 
property,  the  sale  can  not  be  enforced,  even  though  the  pur- 
chase money  is  paid,  and  the  sheriff  afterward  makes  due  re- 
turn of  the  sale.*  The  sheriff,  in  making  sales,  acts  as  the 
legal  agent  and  representative  of  the  plaintiff  and  defendant 
in  the  judgment,  and  of  the  accepted  bidder  at  the  execution 
sale,  and  he  has  the  right  to  bind  all  the  ])arties  by  his  mem- 
orandum. This,  it  has  been  held,  he  may  do  by  his  return  on 
the  execution;*  his  return  of  the  facts  attending  the  purchase, 
made  at  the  time  of  the  sale,'  taking  the  case  out  of  the  stat- 
ute of  frauds,  and  binding  all  parties  by  an  enforceable  exec- 
utory contract.  It  is  no  part  of  the  office  of  a  slierifi"'s  re- 
turn, however,  to  show  what  land  is  sold  on  execution,  the 
province  of  a  return  being  to  show  the   satisfaction    or  part 

1  Townsend  v.  Tallant,  33  Cal.  54;  101   Mass.  409;  Remington  v.  Lin- 
Hawkins  V.    Hawkins,  28   Ind.  70;  tliicum,  14  Pet.  92. 
Bethel  v.  Bethel,  6  Bush  (Ky.),  65.  *  It  is  a  prevailing  rule,  however, 

^Crowell  V.  Johnson,  2  Neb.  146;  that  alter  confirmation  judicial  sales 

Matthews  v.  Eddy,  4  Oreg.  225;  Ea-  are  not  w  thin  the  statute  of  frauds: 

ton  I'.  White,  18  Wis.  517.  Bozza  v.  Rowe,  30  111.  19S;  Fire  Ins. 

^Ruckle  V.  Barbour,  48  Ind.  274;  Co.  r.  Loomis,  11  Paige,  4^11;  Stew- 
Evans  V.  Ashley,  8  Mo.  177.  art  v.  Garvin,  31  Mo.  36;  Ilutton  v. 

'  Gossard  v.  Fergusen,  54  Ind.  519.  Williams,  35  Ala.  503.    And  in  some 

But  see  Sanborn  v.  Chamberlin,  101  States  they  are  held  to  be  not  within 

Mass.  409.  the  statute  at  all:    Fulton  r.  Moore, 

MVarohouse  Co.  r.  TerriU,  13  Bush  25  Pa.  St.  468;    Halleck  r.  Guy,  9 

(Ky.),  4G3;   Sanborn  v.  Chamberlin,  Cal.  181. 
28 


IStt  ABSTRACTS    OF   TITLE. 

satisfaction  of  the  judi^ment,  or  failure  to  make  satisfaction 
thereof,  and  the  particulars  of  the  sale,  sul>ject-raatter,  con- 
sideration, purchaser,  etc.,  are  best  shown  by  the  certificate 
of  purchase  or  by  the  recitals  in  the  sherift^'s  deed.'  Deeds 
do  not  issue  imniediatelj  upon  execution  sales,  and,  in  many 
cases,  judicial  sales  as  well,  but  a  reasonable  time  is  allowed 
during  which  the  judgment  debtor  may  redeem  the  ])roperty 
upon  payment  of  the  judgment,  costs,  charges,  etc.,  and  a  cer- 
tificate stating  the  facts  is  issued  to  the  purchaser  on  the  sale.^ 
A  duplicate  of  this  certificate  is  recorded  in  the  registry  of 
deeds,  and  the  certificate,  duplicate  or  record  of  same  is,  by 
law,  made  evidence  of  the  facts  therein  stated.  In  case  of  re- 
demption, as  provided  by  law,  a  certificate  of  redemption  is 
issued  and  recorded  in  like  manner.  The  certificate  of  sale 
made  by  the  sheriff"  is  suflaciently  shown  as  follows: 


Seth  Hanchett^  Sheriff 
of  Cook  Co.,  Ills, 
to 
Hiram  Smith. 


Certificate  of  sale. 

Dated  March  i,  1882. 

Becorded  March  ^,  1882. 

Book  WO,  i^age  210. 

Said  Sheriff  (by  deputy^  cer- 
tifies that  Ijy  virtue  of  a  certain  {fdias,  pluries,  etc.)  writ  of 
execution  to  him  directed  from  the  Superior  Court  of  Cook 
County,  issued  on  a  judgment  rendered  at  the  November 
Term,  1881,  of  said  court  in  favor  of  Willia7n  Thompson, 
plaintiff,  against  Thomas  Jones,  defendaiit,  for  $1,000.00  and 
costs,  dated  February  1,  1882,  he  did  on  March  1,  1882,  at  10 
o'clock  A.  M.,  at  the  front  door  of  the  court  house  in  the  city  of 
Chicago,  {the  time  and  place  aforesaid  having  been  duly  adver- 
tised according  to  law)  sell  at  public  vendue  allright,  title  and 
interest  of  said  defendant  in  and  to  [here  set  out  the  description 
as  found  in  the  ce7'tificati\  to  Hiram  Smith  for  $1,035.00,  said 
sum  being  the  highest  and  best  bid  offered  for  said  tract  or 
lot  of  land,  the  same  having  been  first  offered  in  separate 

^  Gardner  ?J.  Eberhart,  82  111.  316.  period     allowed     for    redemption: 

^  The  legal  effect  of  the  certificate  Vaughn  v.  Ely,  4  Barb.  156,  and  see 

is  to  evidence  the  lien  of  the  purcha-  Evertson  v.  Sawyer,  2  Wend.  507. 

ser  upon  the  lands,  for  the  amount  ^  When  such  is  the  case. 

of  his  bid  and  interest,  during  the 


JUDICIAL    AND    EXECUTION   SALES.  43") 

tracts  or  lots,  ivithout  receiving  any  hid  or  lids  tlierrfor,  or 
for  any  part  thereof,  and  the  purchaser  will  he  entitled  to 
a  deed  of  the  premises  so  sold  on  March  1,  1SS3,  unless  the 
same  shall  he  redeemed  as  provided  hy  laio. 

As  lias  been  seen,  where  lands  are  sold  bj  order  of  court, 
althonwh  the  sheriff  is  a  proper  person  to  make  the  sale,  the 
court  has  discretionary  power  to  appoint  a  commissioner, 
master  in  chancery,  or  other  officer  of  the  court,  or  any  fit  and 
proper  person  to  make  it.  Sales  made  by  a  commissioner  or 
master,  under  the  direction  of  a  court  of  chancery,  do  not 
stand  in  all  respects  on  a  footing  with  sales  made  b\'  a  sheriff 
under  an  execution.  The  latter  are  made  under  the  naked  au- 
thority of  the  writ,  the  former  under  the  direct  supervision  of 
the  court.'  Judicial  sales  are  usually  entrusted  to  a  master, 
who  also  executes  the  deed,  and  on  such  sale  a  certificate  issues 
to  the  purchaser  in  like  manner  as  in  sales  on  execution.  The 
followinii;'  abstract  presents  the  salient  features  of  a  master's 
certificate: 


Henry  W.  Bishop, 
Master  in  Oiancery 
of  the  Circuit  Court 
of  Cook  county, 
111., 

to 
'William  Jachson. 


Certificate  of  Sale. 
Dated  Men)  3,  ISSO. 
Recorded  May  3,  ISSO. 
Book  210,  page  500. 
Said   master   certifes    that    in 
fursuance    of    a    decree    entered 
Jtme  15, 1S79,  hy  said  court  in  the 
Doc.  10,028.  J   canse    in  chancery   entitled   \1icre 

set  out  the  title  of  the  cause\  he 
duly  advertised  according  to  law  the  premises  hereinafter 
described  to  he  sold  at  puhlic  auction  to  the  highest 
and  hest  hidder  for  cash  at  10  o\-lock  A.  M.,  on  May 
3,  1880,  at  the  front  door  of  the  court  house,  in  the  city 
of  Chicago,  III. 

That  at  the  time  and  place,  so  aforesaid,  ajypointed  f.r 
said  sale  he  attended  to  make  the  same  and  offered  and  ex- 
posed said  premises  for  sale  at  piiMic  auction  to  the  highest 
and   hest   hidder  for   cash.      Whereupon    Willia/n   Jacksvn 

'Meetzer.  Padgett,  1  S.  C.  127;      277. 
Lasell   V.  Powell,  7  Coldw.  (Terni.) 


436  ABSTKACTS    OF   TITLE. 

offered  and  hid  therefor  %lfiOO.OO^  and  that  leing  the  highest 
and  best  hid  therefor,  he  accordingly  struck  off  and  sold  to 
said  bidder  for  said  sum  the  said  ^premises  which  are  situ- 
ated in  Cook  county,  Illinois,  and  described  as  follows, 
to  wit:  [here  describe  the  property ?^  He  further  certifies 
that  said  William  Jachson,  his  legal  representatives  or 
assigns,  loill  be  entitled  to  a  deed  of  said  premises  on  May 
3,  18S1,  unless  the  same  shall  be  redeemed  according  to  laiv. 

§  18.  Assignment  of  Certificate.  Certificates  given  at 
judicial  and  execution  sales  are  usually  by  statute  made 
assignable  by  indorsement,  and  the  assignee  is  entitled  to  the 
benefits  in  every  respect  to  which  the  original  purchaser  was 
entitled  therefrom.  It  is  subject  in  his  hands  to  all  defenses 
that  could  have  been  made  against  it  in  the  hands  of  the 
assignor,  such  assignee  standing  in  the  shoes  of  the  original 
purchaser.  But  such  purchaser  does  not  take  the  land  itself 
by  his  bid,  but  only  an  incipient  interest  that  may  or  may  not 
ripen  into  an  absolute  estate;  and  as  a  party  can  not  assign 
that  which  he  hath  not,  so  such  purchaser,  not  having  the 
legal  title  to  the  property,  of  course  can  not  assign  it.  It 
would  seem,  therefore,  that  the  assignee  can  not  be  regarded 
as  an  innocent  purchaser,  nor  entitled  to  protection  as  sucli, 
nntil  he  is  clothed  with  a  legal  title  by  a  sheriff's  deed.^ 
Where  the  original  purchaser  dies  before  the  issuance  of  a 
deed,  in  the  absence  of  an  express  devise,  his  executors  will 
succeed  to  no  rights  in  the  land,  and  have  no  right  to  demand 
a  deed,  but  the  sheriff's  deed  should  be  made  to  the  party's 
heirs  at  law.^ 

S  19.  Proof  of  Title  under  Judicial  and  Execution  Sales. 
Where  a  party  attempts  to  avail  himself  of  a  decree,  as  an 
adjudication  npon  the  subject-matter,  or  as  a  link  in  his  chain 
of  title,  founded  on  a  judicial  sale  under  the  decree,  he  is  re- 
quired to  produce  the  judgment  roll,  so  that,  among  other 
things,  the  court  may  determine,  on  an  inspection   of  the  en- 

1  Roberts  v.  Clelland,  82    111.  538;      Minn.  81. 
Reynolds  r.  Harris,  14  Cal.  667,  and  ^ p^^ts  j,_  ])j^^enpo^t.^    79  111.455; 

see    Messerschmidt     v.    Baker,    22      Swiuk  v.  Thompson,  31  Mo.  336. 


JUDICIAL    AND    EXECUTION    SALES.  437 

tire  roll,  whether  the  court  which  rendei-ed  the  decree  had  ju- 
risdiction of  the  subject-matter.'  It  is  true,  the  purchaser 
may  rest,  in  support  of  his  title,  upon  the  judgment  or  de- 
cree, and  the  deed  thereunder,  but  he  must  produce  a  valid 
judgment  or  decree,  and  the  well  established  rule  is  tliat  the 
method  of  proving  such  judgment  or  decree  to  be  valid  is  by 
the  production  of  the  roll,  on  an  inspection  of  which  it  may 
be  determined  whether  the  court  had  the  necessary  jurisdic- 
tion of  the  subject-matter.^  In  analogy,  therefore,  to  the  pres- 
entation of  the  judgment  roll,  a  synopsis  of  the  papers  and 
proceedings  in  the  cause  should  always  form  a  preliminary 
statement  to  the  abstract  of  the  officer's  deed,  and  should  be 
sufficiently  full  and  explicit  to  enable  counsel  to  pass  with  ju- 
dicial discrimination  upon  the  merits  of  the  title  as  aflfected 
by  the  proceedings.  In  all  proceedings  in  equit3',  where  the 
suits  are  wholly  or  partially  in  7'em,  this  is  always  done,  but 
in  legal  actions,  or  where  the  proceeding  is  in  personam,  a 
difi'erent  rule  seems  to  prevail.  The  reason  for  this  is  appa- 
rent, in  that  personal  actions  affecting  the  land  only  collater- 
ally, and  by  reason  of  the  statutory  lien  of  the  judgtnent,  ex- 
aminers have  not  deemed  it  necessary  to  show  the  various 
steps  which  led  up  to  the  judgment,  but  have  contented 
themselves  with  a  simple  showing  of  the  fact  tliat  judgment 
was  rendered.  Yet  if  the  court  failed  to  obtain  jurisdiction 
of  the  person  of  the  judgment  debtor,  and  has  erroneously 
proceeded  to  hear  the  proofs  and  render  judgment  when  no 
sufficient  steps  had  been  first  taken  to  bring  the  parties  prop- 
erly before  it,  any  sale  made  in  satisfaction  of  such  judgment 
would  be  void  and  confer  no  title  on  the  purchaser.^  These 
are  extreme  cases,  yet  they  have  occurred,  and  may  again, 
and  it  would  seem,  therefore,  that  \n  actions  in persona?n,  fol- 
lowed  by  judgment,  execution  and  deed,  sufficient  should  be 

'See    "Chancery    Proceedings,"  case,  there  was  a  sale  under  execu- 

in/ra.  tion;   the  judgment  was  afterward 

^Hai-per  i\  Rowe,  53  Cal.   233;  1  declared  void  for  want  of  proof  of 

Greenl.  Ev.  §  511;  2  Phil.  Ev.  138;  service,  and  the  sali^  declarod  a  nul- 

Vail  V.  Iglehart,  69111.  332.  lity;  and  sec  Johnson  r.   Baker,  38 

3  Albee  r.  Ward,  8  Mass.  79;  Mill-  111.  98;   but  compare  Fiteh  r.  Uoyor, 

er  v.  Handy,   40  III.   448.     In  this  51  Tex.  336. 


438  ABSTRACTS    OF    TITLE. 

shown  to  Gnal)lo  counsel  to  see  that  the  parties  were  properly 
before  the  court, 

§  20.     Continued.     It  is  true,  liowever,  as  a  general  propo- 
sition, that  a  domestic  judgment  ol"  a  court  of  general  juris- 
diction, upon  a  subject-matter  witliin   tlie   ordinary  scope  of 
its  powers  and  proceedings,  is  entitled  to  such  absolute  verity, 
that  in  a  collateral    action,  even  wliere  the  record  is  silent  as 
to  notice,  the  presumption,  when  not  contradicted  by  the  rec- 
ord itself,   that  tlie  court  had  jurisdiction  of  the  person  also, 
is  so  conclusive  that  evidence  aliunde  will  not  be  admitted  to 
contradict  it.*     It  is  probably  on  the  strength  of  this  doctrine 
that  examiners  have   been   accustomed   to  show  only  the  fact 
of  judgment,  and  not  the  preliminary  steps  attending  it,  as- 
suming the  judgment  to  be  valid;  and  attorneys  have  parsed 
upon  the  facts  so  presented,  in  view  of  the  oft-rej>eated  prin- 
ciple, that  all  that  a  purchaser  must  show  to  sustain  his  title, 
is  a  valid  judgment,  execution,  and  a  sheriff's  deed.'"^     If  the 
court  had  jurisdiction  of  the   subject-matter,  and  the  proper 
parties  were  before  it,   and   its  proceedings  were  regular,  and 
the  sale  was  properly  conducted,  then  the  title  of  an  innocent 
purchaser  will  not  be  disturbed,  and  he  may  rest  secure  upon 
the  assurances  of  his  deed,  but  from  a  general  view  of  the  re- 
ported cases,  it  would  seem  that  the  four  points  just  enumer- 
ated are  the  great  essentials  to  a  perfect  title,  and  all  which  a 
purchaser  must  show  to  satisfactorily  prove  it.     A  fair  pur- 
chaser is  not  bound  to  go  through  all  the  proceedings,  and  to 
look  into  all  the  circumstances,  and  see  that  the  decree  is  right 
in  all  its  parts.     He  has  the  right  to  presume  that  the  court 
has  taken  the  necessary  steps  to  investigate  the  rights  of  the 

1  Fitch  V.  Boyer,  51  Tex.  336;  Guil-  presumption  in  favor  of  the  jurisdic- 
ford  V.  Love,  49  Tex.  715;  Griffin  v.  tion  and  regularity  of  the  proceed- 
Page,  18  Wall.  350;  Hahn  v.  Kelly,  ings  of  courts  of  record  or  general 
34  Cal.  391;  Freeman  on  Judg'ts,  jurisdiction,  had  its  origin  in  the 
§  124;  2  Am.  Lead.  Gas.  736.  fact  that,  at  common  law  no  judg- 

2  Coffee  V.  Silvan,  15  Tex.  362;  mcnt  could  be  given  against  a  de- 
Hughes  v.  Watt,  26  Ark.  228;  Len-  fendant  until  he  had  appeared  in  the 
nox  V.  Clarke,  52  Mo.  115;  Splahn  v.  action:  Neff  r.  Penuoyer,  3  Sawyer, 
Gillespie,  48  Tnd.  397;  Mayor.  Fo-  274. 

ley,  40  Cal.  281.    The  common  law 


JUDICIAL    AND    EXKCUTION    SALES.  439 

parties,  and  upon  such  investigation  lias  properly  decreed  a 
sale,  lie  will  not  be  aftected  bv  any  imperfection  in  the 
frame  of  the  bill,  if  it  contain  sufficient  matter  to  show  the 
propriety  of  the  decree,  and  the  propriety  of  the  decree  must 
be  attested,  and  its  validity  determined  by  the  then  existing 
circumstances.' 

§  21.  Probate  Sales.  "Probate  sales,"  saj's  Mr.  Freeman, 
"  we  are  sorry  to  say,  are  generally  viewed  with  extreme 
suspicion.  Though  absolutely  essential  to  the  administration 
of  justice,  and  forming  a  portion  of  almost  every  chain  of 
title,  they  are  too  often  sui^jected  to  tests  far  more  trying 
than  those  ap])lied  to  other  judicial  sales.  Mere  irregulari- 
ties of  proceeding  have,  even  after  the  proceedings  had  been 
formally  aj)})rov^ed  by  the  court,  often  resulted  in  the  over- 
throw of  the  purchaser's  title.  In  fact,  in  some  courts,  the 
spirit  manifested  toward  ])robato  sales  has  been  scarcely  less 
hostile  than  that  which  has  made  tax  sales  the  most  precari- 
ous of  all  the  methods  of  acquiring  title."'  Possibly  the 
learned  author  has  taken  a  too  extreme  view  of  the  matter 
though  it  must  be  conceded  that  b}^  reason  of  the  many  juris- 
dictional facts  and  circumstances  which  environ  sales  of  this 
character,  titles  derived  thereunder  are  not  as  stable  as  those 
derived  under  sales  in  equity,  or  even   by  execution.*     There 

'  Zirkle  v.  McCue,  26  Gratt.  (Va.)  its  practice  is  neither  in  accordance 
617.  with  established  common  hiw  or 
2  Freeman  Void  Jud.  Sales,  44.  chancery  precL'donts,  and  hence  not 
^  While  the  decrees  of  a  probate  reviewable  in  the  light  attbrded  by 
court,  upon  m:;tters  within  its  ju-  such  precedents,  they  are  not  merely 
risdiction  are  as  flnal  and  conclusive  voidable  if  want  of  jurisdiction  ap- 
as  the  judfjments  of  any  other  court  pears,  but  absolutely  void  (Sumner  v. 
(Barker  v.  Barker,  14  Wis.  131;  Parker,  7  Mass.  79;  Smith  r.  Rice,  11 
Cummings  v.  Cummings,  12  !  Mass.  Mass.  507),  and  an  unwarranted  step 
271;  Dayton  V.  Mintzer.  22  Minn.  at  the  outset  will  suffice  to  vitiate  all 
393),  and  its  records  import  absolute  subsequent  proceedings.  Thus,  if 
verity  (Wood  v.  Myrick,  16  Minn.  the  original  appointment  of  the  ad- 
494;  Tibbitts  t'.  Tilton,  24  N.  H.  ministrator  is  void,  all  the  subse- 
124),  yet  owing  to  the  peculiarly  quent  proceedings  are  void:  Gary's 
connected  character  of  its  proceed-  Prob.  Prac.  12;  Frederick  v.  Pac- 
ings, and  the  interdependence  of  all  quette,  19  Wis.  541. 
its  acts,  as  well  as  the  further  fact  that 


440  ABSTKACTS    OF   TITLE, 

is,  however,  a  growing  tendency  to  disregard  mere  irregulari- 
ties, errors  of  form  and  other  matters  not  directly  affecting 
jurisdiction,  and  all  presumptions  are  in  favor  of  the  sale 
and  of  the  validity  of  the  title  based  on  such  proceedings.* 
Probate  courts  are  invested  by  law  witli  a  general  jurisdiction 
in  cases  where  real  estate  is  to  be  sold  for  the  payment  of  the 
debts  of  decedents,  and  where  a  court  ordering  a  sale  has  ju- 
risdiction of  the  subject-matter  and  of  the  proper  parties,  even 
if  the  proceedings  are  irregular  and  erroneous,  the  decree  and 
sale  under  it  can  not  be  assailed  in  a  collateral  proceeding,^ 
nor  can  the  purchaser  for  that  reason  avoid  the  sale.^  Until 
reversed,  the  decree  confers  power  to  sell  and  pass  the  title, 
however  erroneous  it  may  be.*  Xo  class  of  public  sales  are 
better  entitled  to  a  just  degree  of  protection  than  those  of  ad- 
ministrators.^ 

§  22.  Nature  and  Requisites  of  Probate  Sales.  Sales  in 
probate,  though  made  in  connection  with,  and  as  a  part  of 
the  regular  administration  and  settlement  of  the  decedent's 
estate,  are  yet  to  be  regarded  as  special  and  independent  pro- 
ceedings. Such  pi'oceedings  are  regularly  inaugurated  by 
the  tiling  of  a  petition,  stating  the  necessary  jurisdictional 
facts,  and  praying  for  license  to  sell,  and  it  is  this  petition, 
and  the  recital  of  the  statutory  requisites,  which  gives  to  the 
court  its  jurisdiction  to  take  cognizance  of  the  matter  and 
make  subsequent  orders  in  relation  to  same.®  The  proceed- 
ing is  in  the  nature  of  an  action,  of  which  the  petition  is 
the  commencement,  and  the  order  of  sale  the  judgment,  the 
whole  forming  a  new,  separate   and   independent   proceeding, 

1  Reynolds  v.  Schmidt.  20  Wis.  ton  v.  Wilson,  29  Wis.  383;  Falkner 
374;    ilohr  r.  Tulip,   40    Wis.    66;      v.  Guild,  10  Wis.  563. 

Woods   V.   Monroe,  17    Mich.   238;  ^  Wing  t?.  Dodge,  80  111.  564, 

Morrow   t?.  Weed,  4  Iowa,  77;  King  *  Wing  v.    Dodge,    80    111.    564; 

V.  Kent's  heirs,  29  Ala.  542;  Moffitt  Montgomery  v.  Johnson,  31  Ark.  74, 

V.  Moffitt,  69  111.  641;  Maurr  v.  Par-  ^  Goudy  v.  Hall,  36  111,  313;  Mc- 

rish,  26  Oh'o    St,    636;    Bowen   v.  Cowan  r.  Foster,  33  Tex.  241. 

Bond,  80111.  351,  «Pryor  v.  Downey,  50  Cal.   389; 

2  Nichols  V.  Mitchel,  70  111,  258;  Hall  r.  Chapman,  35  Ala.  553;  Jack- 
Wing  V.  Dodge,  80  111.  564;  Dayton  son  v.  Robinson,  4  Wend.  436;  Eth- 
V.  Mintzer,  22  Mmn.  393;   Farring-  ell  v.  Nichols,  1   Idaho  (N.  S,),  741. 


JUDICIAL    AND    EXECUTION   SALES. 


441 


depending  for  its  validity  upon  the  sufficiency  of  the  facts 
stated  in  the  petition.'  All  the  necessary  features  common 
to  equitable  actions,  both  as  respects  the  subject-inatter  and 
the  parties,  must  be  present  and  affirmatively  a]ii)ear,  and  as 
tJie  action  is  adversary  in  its  character,  and  in  derogation  of 
the  rights  of  devisees  and  lieirs,  all  the  parties  liaving  an  in- 
terest in  the  premises,  defendant  as  well  as  plaintiff,  must 
be  regularly  brought  before  the  court.^  The  filing  of  the  pe- 
tition will  give  tiie  court  jurisdiction  of  the  subject-matter, 
but  jurisdiction  must  also  be  obtained  over  the  persons  of  the 
heirs  and  devisees  in  the  manner  prescribed  by  law,  as  well 
as  of  the  subject-matter,  or  its  order  will  be  void.*  Hence, 
the  proceedings  must  show  issuance  and  service  of  citations, 
or  appearance  in  the  action,  and  a  due  observance  of  the  rights 
of  minors  and  others  under  disability,  for  whom  special  guard- 
ians must  be  appointed,  should  they  have  no  guardians,  or 
if  having  a  guardian,  they  fail  to  appear.^  The  method  of 
citation  is  statutory,  but,  as  a  rule,  contemplates  a  general 
notice  by  publication  and  a  personal  service  on  all  persons 
interested,  if  within  the  jurisdiction  of  the  court,  and  if  the 
proofs  show  an  insufficient  service  or  publication,  the  subse- 
quent proceedings  are  fatally  dei'ective.** 

§  23.     Abstract  of  Probate  Sales.     Sales  by  the  executor  or 


'  The  necessity  for  a  sale  is  not  a 
matter  for  the  administrator  or  exec- 
utor to  determine,  but  is  a  conclu- 
sion which  the  court  must  draw 
from  facts  stated,  and  the  petition 
must  furnish  materials  for  the  judg- 
ment: Pryor  v.  Downey,  50  Cal. 
398;  Ethel!  v.  Nichols,  1  Idaho  (N. 
S.),  741. 

^Morris  v.  Hogle,  37  111.  150; 
Hoard  v.  Hoard,  41  Ala.  590;  Guy  v. 
Pierson,  21  Ind.  18;  Fiske  v.  Kel- 
logg,  3  Oreg.  503.  This  is  contrary 
to  the  doctrine  stated  in  Grignon's 
Lessee  v.  Astor,  2  How.  (U.S.)  :!19, 
which  for  many  years  was  accepted 
in  this  country,  and  is  founded  on 


better  reason  and  more  correct  prin- 
ciples. In  that  case,  the  proceeding 
was  hehl  to  be  in  rem  and  not  ad- 
versary, and  that  the  administrator 
represents  the  liind. 

3  Grayson  r.  Weddle,  G3  Mo.  523; 
Botsford  V.  O'Connor,  57  III.  79. 

*  Fiske  r.  Kellofrg,  3  Oreg.  503. 

6  Fiske  V.  Kellogg,  3  Oreg.  503. 
The  omission  to  make  the  guardian 
of  the  minor  heirs  or  devisees  a 
party,  can  not  be  taken  advantage 
of  in  a  collateral  proceeding:  Harris 
t'.  Lester,  80  111.  307. 

^Blodget  V.  Hitt,  29  Wis.  1G9; 
Mohr  V.  Tulip,  40  Wis.  66;  Sibley  r. 
Waffle.  16  N.  Y.  180. 


443  ABSTRACTS    OF    TITLE. 

administrator  may  be  shown  in  connection  with  the  settle- 
ment of  tlic  decedent's  estate,  or  as  independent  exhibits. 
Where  a  former  abstract  shows  the  death  of  the  decedent, 
probate  of  nis  estate,  etc.,  and  a  sale  of  all  or  a  portion  of  the 
land  of  such  decedent  occurs  during  a  subsequent  examina- 
tion or  continuation,  no  necessity  exists  for  re-exhibiting  the 
probate  proceedings,  and  the  abstract  of  the  sale  commences 
with  the  filing  of  the  petition.  Where  the  examination  is 
original,  sufficient  of  the  action  of  the  probate  court  must  be 
given  to  show  the  facts  of  death,  application  for  probate,  ap- 
pointment of  administrator,  and  proof  of  heirship,  in  case 
of  intestate  estates;  and  of  probate  of  will,  letters  tes- 
tamentary and  devisees,  in  case  of  testate  estates.  Examples 
of  probate  of  wills  will  be  found  in  the  chapter  on  wills, 
and  of  the  probate  of  intestate  estates  in  the  chapter  on  de- 
scents; a  probate  sale  in  either  case  would  be  shown  some- 
what as  follows,  making  due  allowance  for  the  minor  differ- 
ences which   must  appear  between  testacy  and  intestacy: 


Probate  Court  of  Cook  Count tj.  III. 


Prohate  Sale. 

Petition  of  8 amuel  M.  Hender- 
son, administrator  aforesaid,  filed 
Jidy  6,  1881. 

Represents  {among  other  things^ 
>  that  the  personal  estate  of  deceased 
is  insvjfieientto  pay  claims  against 
said  estate  in  the  sum  of  %1,000.00, 
beside  the  cost  of  administration.^ 
That  deceased  died  having  a 
claim-  and  title  to  the  folloioing 
described  reed  estate:  [describing 
the  same.]  That  said  deceased  left  surviving  Mary 
E.  Adams,  his  w^idow,  having  a  dower  interest  in  his  real 
estate;  and  Charles  W.  Adams,  and  Henry  S.  Adams,  his 
children,  his  only  heirs  at  law.  That  Henry  S.  Adams  is  a 
minor  and   has  no  guardian.     Tliat  Lot  ^2,  in  Block,  IJf., 

^  This  is  the  vital  part  of  the  peti-  statement  is  therefore  a  jurisdictional 

tion,  for  a  sale  of  land  to  pay  debts  fact:   Foley  v.  McDonald,  46  Miss, 

is  never  allowed  until  the  personal  238. 
property  has  been  exhausted;  this 


Samuel    3f.    Hender- 
son, odministiritor  of 
the  Estate  of  Nathan 
Adams,  deceased, 
vs. 

Charles  W.  Adams, 
Henry  S.  Adams, 
Mary  E.  Adams, 
widow  of  Nathan 
Adams,  and  Thomas 
R.  Smith. 


JUDICIAL    AND    EXECUTION    SALES.  4:4:3 

[etc.,']  is  now  occiqyied  hy  and  in  the  possession  of  Thomas 
II.  Smith. 

Prays  that  a  cjiiardian  ad  litem  may  he  appointed  for  said 
minor  heir,  ami  that  the  Court  ivill  order  and  direct  said 
petitioner  to  sell  the  said  raal  estate  or  so  much  as  may  he 
necessary  to  pay  said  deficiency. 

Sworn  to  July  6",  1881. 

Summons  issued,  dated  July  6, 1881,  to  all  of  said  defend- 
ants, returnahle  on  the  3d  Monday  of  July,  1881. 

Siiinmons  returned  indorsed  as  follows:^  [In  a  necessary 
case  set  out  the  return?^ 

Order  entered  Jidy  25,  1881,  appointing  Charles  Ander- 
son guardian  ad  litem  for  said  minor  defendant. 

Ansicer  hy  said  defendants  and  said  minor  defendant  hy  his 
guardian  ad  litem,  and  reply  thereto,  fled  July  £5,  1881.'^ 
[Note  default,  if  any.'] 

Decree  entered  July  25,  1881.  {Record  2  of  decree,  page 
Jfi.)     {Set  out  the  decree  or  the  suhstavce  of  same.'] 

Administrator'' s  report  of  sale  filed  Sept.  22,  1881.^ 

Itepresents,  that  in  pursuance  of  a  decree,  etc.,  \set  out  the 
suhstance  of  the  report.]     Sivorn  to,  Sej>t.  19,   1881. 

Attached  to  the  report  of  sale  and  filed  therewith,  is  proof 
of  ])uhlication  and  p>osting  notices  of  sale. 

Printed  copy  of  notice  of  sale  gives  title,  etc. 

Adrtiinistrator'' s  report  of  sale  approved  and  sale  con- 
firmed, Sept.  22,  1881. 

^  The  return  of  process  in  every  ac-  a  guardian   ad  liiem,  or  his  failure 

tion  furnishes  the  proof  of  jurisdic-  to  answer,  will  not  defeat  the  juris- 

tion  over  the  person,  and  in  all  cases  diction:   Gage  v.  Schroeder,   73  111. 

of  default  or  non-appearance  of  any  44. 

of  the  parties  the  mt'thod  of  service  *  It  is  not  usual  to  abstract  tJie  re- 
is  invariably  to  be  shown  by  a  tran-  po  t  of  sale,  but  whore  the  record  is 
script  of  the  officer's  return.  Where  silent  on  vital  points  or  no  evidence 
all  parties  have  appeared  this  be-  appears  of  statutory  essentials;  as, 
comes  of  minor  importance,  and  a  of  posting  notices  of  sale,  or  other 
brief  statement  of  the  fact  of  service  necessary  incidents,  statements  un- 
without  disclosing  the  method  is  suf-  der  oath  in  a  report  of  sale  have 
ficient.  been  held  sufficient  in  collateral  pro- 

2  If  the  court  has  acquired  juris-  ceedings:     Woods    v.    Monroe,     17 

diction  of  the  subject-matter  by  the  Mich.  2;J8.    In  such  cases  the  recitals 

filing  of  a  petition,  and  of  the  per-  of  the  report    become  necess;iry  to 

sonsof  infant  di'scemlants  by  the  pub-  show  validity,  and  should  find  ap- 

lication  of  notice,  a  failure  to  appoint  propriate  mention. 


CHAPTER  XXVIII. 


CnANCERY  RECORDS  AND  PROCEEDINGS. 


§1. 

Chancery   proceedings   gener- 

ings. 

ally. 

§14. 

Fraud,  accident  and  mistake. 

2, 

Authority  and  jurisdiction   of 

15. 

Junctions. 

chancery  courts. 

16. 

Ejectment — Origin    and    his- 

3. 

Authority  and  jurisdiction  of 

tory. 

probate  courts. 

17. 

Operation  and  effect  of  eject- 

4. 

Actions  and  proceedings  to  be 

ment. 

noticed. 

IS. 

Quia  timet. 

5. 

Jurisdiction  the  great  essen- 

19. 

Partition. 

tial. 

20. 

Specific  performance. 

6. 

Notice   afforded  by  chancery 

21. 

Redemption. 

records. 

22. 

Foreclosure. 

7. 

Process. 

23. 

Dower. 

8. 

Formalities  of  a  summons. 

24. 

Divorce. 

9. 

Service. 

25. 

Right  of  eminent  domain. 

10. 

Proof  of  service. 

26. 

Proceedings  for  condemnation 

11. 

Master's  and  referee's  reports. 

and  assessment. 

12. 

Verdicts. 

27. 

Construction  of  wills. 

13. 

Abstract  of  chancery  proceed- 

§  1.  Chancery  Proceedings  Generally.  The  name  of  tin's 
cliapter  is  to  a  certain  extent  a  misnouier,  as  several  of  the 
subjects  discussed  are  strictly  legal  and  not  equitable  pro- 
ceedinojs,  yet  in  the  compilation  of  abstracts  the  general  name 
of  "Chancery  Proceedings"  has  been  given  by  examiners  to 
all  classes  of  actions  that  operate  directly  upon  the  land  and 
culminate  in  judgments  in  rem.  And  while  it  is  undoubtedly 
true  that  the  proper  tribunals  for  the  trial  of  land  titles  are 
the  common  law  courts,  and  that  equitable  jurisdiction  is  only 
invoked  when  the  law  is  inadequate  to  give  relief/  yet  the 


'  Bennett  v.  Nichols,  12  Mich.  22; 
Hears  v.    Howarth,    34    Mich.    19; 


Long  V.  Barker,  85  III.  431;  Peoria  t?. 
Kidder,  26  111.  351. 


(44i) 


CHANCERY    RECORDS    AND    PROCEEDINGS. 


445 


common  law  actions  respecting  land  have  to  a  great  extent 
been  abolished  or  superseded  by  statutory  remedies  of  the 
same  nature  but  based  upon  equitable  principles.'  In  many 
States  no  separate  chancery  jurisdiction  exists  and  the  law 
courts  are  authorized  to  exercise  chancery  powers  and  admin- 
ister equitable  relief  in  all  cases  brought  before  them,  and  to 
adjust  the  chaims  of  the  parties  litigant  according  as  the  right 
may  ap])ear  without  reference  to  the  technical  rules  applying 
to  either  jurisdiction.''  The  common  law  actions  respecting 
title,  in  such  courts  are  regarded  rather  as  equitable  than  legal 
proceedings,  and  equitable  defenses  are  permitted,  while  the 
judgment  of  the  court  ada])ts  itself  to  equitable  methods  in 
disposing  of  the  rights  of  the  parties.^     The  term  employed 


'  The  State  of  New  York,  in  1848, 
passed  an  act  "to  simplify  and 
abridge  the  practice,  pleadings  and 
proceedings,"  of  the  courts  of  that 
State,  whereby  the  then  existing 
forms  of  actions  and  pleadings  in 
common  law  cases  were  abolished; 
the  distinction  between  legal  and 
equitable  remedies  abrogated;  and  a 
uniform  course  of  proceeding,  in  all 
cases,  was  established.  The  State 
of  Ohio  some  years  later  fo' lowed 
the  example  of  New  York,  and  the 
codes  thus  formulated  by  these  two 
States,  have  been  made  the  basis  of 
the  procedure  of  every  State  and 
territory  of  the  Union,  with  only  a 
few  exceptions.  In  some  half  dozen 
States  the  ancient  practice  is  still  re- 
tained, but  in  a  greatly  modified 
form,  and  the  distinction  between 
legal  and  equitable  remedies  pre- 
served, though  both  remedies  are  ad- 
ministered in  the  same  court.  The 
office  of  chancellor,  except  as  the 
name  may  be  applied  to  an  equity 
judge,  has  no  place  in  the  law  system 
of  the  United  States. 

^Troost    V.    Davis,    31    Ind.    34. 


When  the  legal  title  alone  is  in  ques- 
tion it  needs  no  support  from  equities, 
but  stands  impregnable  in  its  own 
strength  and  is  presumed  to  embrace 
all  equities.  Proof  of  equities  be- 
comes important  when  the  legal  title 
is  defective,  or  when  it  is  proposed 
to  assail  it:  Shaw  v.  Chambers,  16 
Reporter,  50. 

'The  codes  of  procedure,  which 
abolish  all  distinction  between  legal 
and  equitable  remedies,  endeavor  to 
blend  them  into  one  system,  combin- 
ing, or  professing  to  combine,  the 
principles  peculiar  to  each,  and 
though  the  only  form  of  a  suit  rec- 
ognized by  them  is  that  known  as 
the  "civil  action,"  the  established 
principles  pertaining  to  each  branch 
of  the  law  are  still  intact  and  of 
binding  force  and  eflBcacy.  The 
only  true  difference  between  the  new 
and  old  systems  is  in  the  practical 
application  of  those  principles: 
Kubens  v.  Joel,  3  Kern.  488;  Scovill 
V.  Griffith,  2  Kern.  515;  Rozicrz  r. 
Van  Dam,  16  Iowa,  175.  See  Meyers 
V.  Rasback,  4  How.  (N.  Y.)  83; 
Giles  V.  Lyon,  4  Com.  (N.  Y.)  600. 


44:6  ABSTRACTS   OF   TITLE. 

to  designate  this  chapter  will  not  mislead,  tlierefore,  and  for 
the  purpose  of  distingnishin;^  between  actions  purely  legal 
and  followed  by  judgment  in  personam^  is,  perhaps,  as  good 
as  could  be  selected.  The  chapter  will,  therefore,  be  devoted 
to  a  general  review  of  all  legal  actions  respecting  land  which 
partake  of  an  equitable  nature,  and  to  such  actions  as  are 
strictly  with  the  equity  jurisdiction. 

§  2.  Authority  and  Jurisdiction  of  Chancery  Courts,  The 
primary  object  of  courts  of  equity,  is  to  supply  defects  in  the 
administration  of  justice  in  the  ordinary  courts,  assuming  the 
power  of  enforcing  the  principles  upon  wliich  the  ordinary 
courts  decide,  when  the  powers  of  those  courts  or  their  modes 
of  proceeding  are  insufficient  for  the  purpose;  to  prevent  those 
principles,  when  enforced  by  the  ordinary  courts,  from  becom- 
ing (contrary  to  the  purpose  of  their  original  establishment) 
instruments  of  injustice;  and  to  decide,  on  principles  of  uni- 
versal justice,  when  the  interference  of  a  court  of  judicature 
is  necessary  to  prevent  a  wrong,  and  the  positive  law  is  silent.^ 
Courts  of  equity  also  administer  to  the  ends  of  justice  by  re- 
moving impediments  to  the  fair  decision  of  a  question  in  other 
courts,  by  providing  for  the  safety  of  property  in  dispute 
pendins:  a  liti2:ation,'''  by  restraininir  the  assertion  of  doubtful 
rights  in  a  manner  productive  of  irreparable  damage,^  by  pre- 
venting injury  to  a  thii'd  person  from  the  doubtful  title  of 
others,*  and  by  putting  a  bound  to  vexatious  and  oppressive 
litigation,  and  preventing  unnecessary  multiplicity  of  suits;' 
and  without  pronouncing  any  judgment  on  the  subject,  by 
compelling  a  discovery  which  may  enable  other  courts  to  give 
their  judgment;  and  by  preserving  testimony,  when  in  danger 
of  being  lost,  before  the  matter  to  which  it  relates  can  be  made 
the  subject  of  judicial  investigation.^ 

1  Whitney  v.  Roberts,  22  111.  381 ;  ^  Scott  v.  Moore,  3  Scam.  (111.)  806; 
'Longv.  Barker.  85  111.  431;  Bennett  Imp.  Fire  Ins.  Co.  v.  Gunning,  81 
V.  Nichols,  12  Mi.h.  22;  Mears  v.  111.  236;  Beatty  v.  Dixon,  56  Cal. 
Howarth,  34  Mich.  19.  619;  Third  Ave.  R.  R.  Co.  v.  Mayor, 

2  Mclntyre  v.  Storey,  80  111.  127.  etc.,  54  N.  Y.  159. 

2  Bennett  j'.McFadden,  61111.334;  «Mit.   PI.  3;     1     Smith's    Chan- 

Prim  V.  Raboteau,  56  Mo.  407.  Prac.  2. 

*  Scott  V.  Moore,  3  Scam.  (III.)  306. 


CHANCERY   RECORDS    AXD    PROCEEDINGS.  447 

§  3.  Authority  and  Jurisdiction  of  Probate  Courts.  The 
probate  courts  of  the  United  States  are  courts  of  special  and 
limited  jurisdiction,  deriving  all  their  authority  from  the  stat- 
ute/ and  possessing  original  and  frequently  exclusive  jurisdic- 
tion^ in  all  matters  pertaining  to  the  settlement  of  estates  of 
deceased  persons,  which  jurisdiction  continues  so  long  as  there 
is  any  occasion  for  its  exercise,  and  until  there  has  been  a  full 
and  complete  settlement  and  distribution/  They  possess,  so 
far  as  may  be  necessary,  a  portion  of  the  equitable  powers  ex- 
ercised by  a  court  of  chancery,*  and  are  not  confined  to  the 
technical  rules  of  common  law  in  opposition  to  established 
chancery  principles.'  They  are  ordinarily  courts  of  record 
upon  the  administration  of  estates,  or  other  matters  over 
which  they  possess  a  general  jurisdiction,  and  as  liberal  in- 
tendments are,  or  should  be,  made  in  their  favor,  as  are  ex- 
tended to  the  proceedings  of  the  circuit  court.®  Their  juris- 
diction in  no  State  extends  to  controversies  respecting  the 
title  to  land,  but  the  peculiar  class  of  matters  entrusted  to 
their  charge  makes  their  judgments  and  decrees  of  con- 
trolling efficacy  in  the  decision  of  questions  relative  to  title, 
which  may  arise  in  other  courts. 

§  4.  Actions  and  Proceedings  to  be  Noticed.  The  only 
proceedings  that  call  for  special  notice  on  the  part  of  the  exam- 
iner, are  such  as  relate  to  the  recovery  of  specific  real  prop- 

'  Hendrick  w.  Cleveland,  2  Vt.  392;  perfect  justice,  refainin^  its   ancil- 

Propst  V.  Meadows,  13  111.  157.  lary  jurisdiction  to  the  same  extent 

2  A  court  of  chancery  may,  in  the  over  matters  in  the  probate  court, 
exercise  of  its  general  jurisdiction,  which  it  has  over  those  in  the  corn- 
take  upon  itself  the  administration  mon  law  courts:  Adams  v.  Adams, 
of  estates,  and  thus,  in  a  particular  22  Vt.  50;  Heustis  v.  Johnson,  84 
case,    supersede  the  jurisdiction  of  111.  61. 

the    probate    court :      Freeland     v.  *  Keeler  v.  Keeler,  39  Vt.  550. 

Dazey,  25    111.  294;  but  the  inter-  Miennett  r.  Whitman.  22  111.  44S; 

ference  of  a  court  of  chancery  in  Appeal  of  Schaoffner,  41  Wis.  260; 

the  settlement  of  estates  is  usually  Brooks  v.  Chajipel,  M  Wis.  405. 

confined  within  the  narrowest  limits,  '  Robinson  v.  Swift,  3  Vt.  2?3. 

and    has    gone    upon    the    ground  'Grignon  r.  Astor,  2  How.  (U.  S.) 

merely  of  aiding  the  jurisdiction   of  319;  Propst  ».  Meadows,  13  111.157; 

the  probate  court    in  those  points  Moreland    r.    Lawrence,    23  Minn. 

only  wherein  its  functions  and   pow-  84;  Barlo^r  r.  Barker,  14   Wis.  131; 

ers  are  inadequate  to  the  purposes  of  Ostrom  r.  Cui-tis,  1  Cush.  460. 


448  ABSTRACTS    OF   TITLE. 

ertj,  or  the  possession  thereof,  called  ejectment;'  actions  and 
proceedings  for  partition f  foreclosure  of  liens^and  mortgages; 
bills  to  quiet  title;  actions  brouglit  to  enforce  the  specitic 
performance  of  land  contracts;  and  incidentally  such  bills, 
actions,  or  proceedings  as  from  their  nature  may  operate  as 
lis  pendens.  All  the  proceedings  specially  enumerated, 
whether  pending  or  closed  by  decree,  should  be  carefully  scru- 
tinized and  stated  with  a  reasonable  degree  of  detail.  The 
decree  entered  in  these  matters,  when  followed  by  deed,  is  the 
foundation  for  such  deed,  and  of  equal  dignity  with  it,  while 
the  anterior  proceedings  go  to  establish  the  validity  of  the 
decree.  In  addition  to  those  matters  of  exclusive  cognizance 
in  the  circuit  court,  the  examiner  will  also  show  all  proceed- 
ino-s  in  the  county  (probate)  courts  that  incidentally  affect 
title,  by  reason  of  the  relation  of  the  parties  to  the  subject- 
matter.  In  this  way  matters  relating  to  adoption,  guardian- 
ship, etc.,  will  frequently  appear,  as  well  as  assignments  of 
dower,  homesteads,  etc. 

§  5.  Jurisdiction  the  Great  Essential.  The  validity  of  all 
decrees,  as  well  as  sales  and  conveyances  which  may  result 
from  them,  are  dependent  on  the  jurisdiction  of  the  court,* 
and  this  has  reference  both  to  the  parties  and  the  subject- 
matter.  Both  of  these  particulars  must  satisfactorily  appear 
in  the  abstract,  and  are  shown  in  the  one  case  by  a  statement 
of  the  return  of  the  summons,  the  method  of  service  being 
also  given  where  greater  certainty  is  desired,  and  in  the  other 
by  a  synopsis  of  the  bill,  answer,  and  other  pleadings.  The 
decree  in  all  instances  must  conform  to  the  process  and  alle- 
gations, i.  e.f  to  the  parties  in  the  action  and  the  matter  re- 

*  Ejectment    is    a    common    law  as  well  as  law  courts:  Hess  ».  Voss, 

remedy,  but  the  statutory  action  sub-  62  111.  472. 

stituted  in  many  States  is  equitable  ^  A  suit  to  enforce  a  mechanic's 
in  its  nature,  and  in  some  States  the  lien  is  substantially  a  chancery  pro- 
action  is  a  substitute  for  a  bill  in  ceeding',  and  is  g-ovei-ned  by  the 
equity:  Tyler  Eject.  58.  chancery  practice:  McGraw  v.   Bay- 

2  Partition  is   also  a  common  law  ard,  96  111.  146. 

action:   Hopkins  v.  Medley,  97  111.  *  Weidersumr.  Naumann,  62How. 

402,  but  partakes  of  many  equitable  (X.  Y.)  Pr.  369;  Campbell  v.   Mc- 

qualities,  and  equity  has  jurisdiction  Cahau,  41  111.  45. 


CHAXCERY   RECORDS    AND    PROCEEDINGS.  449 

cited  in  the  pleadings.'  It  will  therefore  be  seen  that  a  cor- 
rect rendering-  of  the  commencement  of  the  action;  statement 
of  facts  constituting  the  subject-matter;  and  a  full  presenta- 
tion of  the  adjudication  made  thereon,  are  the  only  matters 
of  prime  consideration  on'"  the  part  of  tlie  examiner,  and 
when  these  several  matters  show  apparent  regularity  and  a 
just  correspondence  in  all  their  parts,  correct  and  satisfactory 
opinions  may  be  predicted  upon  them,  even  though  minor 
details  may  have  been  neglected,  and  positive  error  is  shosvn 
by  the  I'ecord. 

§  6.  Notice  Afforded  by  Chancery  Records.  It  is  a  funda- 
mental rule  in  equity  that  purchasers  are  directly  affected  by 
every  matter  or  circumstance  concerning  the  title  to  the  j)rop- 
erty  they  take,  which  affirmatively  ajipears  from  the  plead- 
ings or  decrees  of  courts  of  competent  jurisdiction,  in  actions 
relating  to'such  property,  whether  such  purchasers  have  actual 
notice  or  not.^  It  is  the  application  of  this  rule  which  ren- 
ders necessary  a  searching  investigation  of  the  court  rolls 
whenever  real  property  is  sold,  for  every  man  is  presumed  to 
be  cognizant  of  wliat  transpires  in  the  courts  of  justice,  and 
the  law  will  charge  him  with  actual  notice  of  whatever  there 
occurs,  which  affects  the  merits  of  the  title  he  would  take." 
This  rule,  which  has  alwaj^s  been  considered  a  hard  one,*  is  not 
a  favorite  with  the  courts,  who  are  ever  inclined  to  limit  its 
application,  and  it  will  not  be  extended  to  embrace  collateral 
matters,  or  matters  not  specifically  mentioned  in  the  bill  or 
decree.*  "  In  the  investigation  of  titles,"  says  Mulkey,  J., 
"purchasers  look  for  decrees  and  judgments  against  those 
who  appear  of  record  to  have  been  owners,  and  when  it  is  as- 
certained that  a  particular  decree  or  judgment  does  not  afi'ect 
the  title  which  is  the  object  of  inquiry,  it  is  believed  not  to  be 
customary  to  look  further;  and  to  hold  that  purchasers  are 
affected  with  constructive  notice  of  every  fact  relating  to  the 

» Slocum  v.  Slocum,  9  111.  App.  418.  "j^eitch  r.  Wells,  48  N.   T.   585; 

Thus,  one  case  can  not  be  alleged  and  Jackson  r.  Warren,  32  111.  331.          ' 

another  proved:    Meredith  r.  Little,  ^  Leitch  r.  Wolls,  48  N.  Y.  585. 

6  Lea  (Tenn.),   521;    Parkhurst  v,  *  Hayden  r.  Bucklin,  9  Paige,  572. 

Race,  100  III.  207.  ^Dugan  v.  Follett,  100  111.  581.      , 
29 


450  ABSTRACTS    OF   TITLE. 

purchased  estate  that  may  happen  to  appear  in  some  of  ti.e 
liles  of  a  case,  and  not  elsewhere,  would,  in  our  judgment,  l-e 
carrying  the  doctrine  of  constructive  notice  to  a  dangerous 
extent.  The  establishment  of  such  a  rule  would  have  a  direct 
tendency  to  unsettle  titles,  for  no  one  conld  know  of  a  cer- 
tainty when  he  was  getting  a  good  title,  without  examining 
the  files  in  every  case  in  the  county  where  the  land  lays,  and 
this  would  be  wholly  impracticable.  We  hold,  therefore,  pur- 
chasers are  not  bound  to  look  bej^ond  the  judgment  or  decree, 
and  the  legal  effect  it  may  have  on  the  title  which  is  the  sub- 
ject of  inquiry."* 

§7.  Process.  Equity  suits  are  commenced  by  the  filing  of  a 
bill  or  petition  in  the  office  of  the  clerk  of  the  court  in  which 
the  action  is  brought,  which  bill  contains  a  statement  of  the 
facts  constituting  the  complainant's  claim,  and  a  prayer  for 
such  relief  as  lie  may  deem  himself  entitled  to.  Upon  the 
filing  of  this  bill  or  petition  process  issues  to  compel  the  ap- 
pearance of  the  defendants.  This  is  the  ancient  chancery 
procedure,  and  process  issued  before  the  filing  of  the  bill,  or 
service  made  prior  thereto,  is  a  nullity.^  The  codes  substi- 
tute a  new  procedure,  by  which  the  issuance  of  summons  is 
made,  in  ordinary  cases,  the  commencement  of  the  action,^ 
but  the  law  governing  the  service  of  process  is  substantially 
the  same,  and  the  court  in  either  case  derives  its  jurisdiction 
only  from  a  full  and  technical  compliance  with  the  law.  A 
discussion  of  practice  is  foreign  to  the  purposes  of  this  work, 
and  in  speaking  of  these  matters  reference  can  only  be  made 
to  the  commonly  accepted  principles  which  are  recognized  by 
all  courts  and  are  applicable  to  all  systems  of  practice,  trust- 
ing that  the  points  given  will  sngi^est  others  depending  upon 
local  rules  and  decisions.  The  process  of  a  court  has  vitality, 
and  may  be  enforced  anywhere  within  its  jurisdiction,  but 
beyond  tliat  it  is  of  no  effect,  and  service  beyond  its  juris- 

1  Dugan  V.  Follett,  100  111.  581.  ^  Tins  is  the  procedure  of  the  N. 

2  Story's  Eq.  PI.  §7;  Barton's  T .  code  and  all  systems  based  there- 
Suit  in  Eq.  39;     Hodgen  v.  Guttery,       on. 

58  111.  431. 


CITANCERT    RECORDS    AND    PROCEEDINGS. 


451 


diction  confers  no  jurisdiction  over  the  person  of  the  de- 
fendant/ 

§  8.  Formalities  of  a  Summons.  It  is  not  Iiecessar}'^  in  the 
abstract  of  court  records  to  set  out  minutely  all  the  papers 
and  files,  and  as  a  rule  the  practical  purposes  of  the  abstract 
can  be  accomplished  by  references  and  partial  statements. 
Tiie  summons,  however,  is  vital,  and  unless  there  has  been  an 
appearance,  the  formal  requisites  are  jurisdictional.^  When 
the  summons,  as  under  the  old  chancery  practice,  issues  out  of 
the  court  where  the  bill  has  been  filed,  it  must  be  with  prop- 
er venue,'  for  a  defendant  has  a  rii^ht  to  know  when  and  where 
he  is  required  to  appear,  and  when  the  writ  fails  to  furnish 
such  information,  it  is  void.*  It  must  run  in  the  name  of  the 
"People"  or  the  "State,"*  or  it  is  void,*  and  must  be  ad- 
dressed to  the  sheriff  of  the  county  in  which  the  defendant  re- 
sides if  he  be  a  resident  of  the  State.''  It  must  correct!}' 
describe  the  parties  to  thesuit,^  and,  when  required  by  statute, 
the  cause  for  which  it  is  broui^ht.' 

When  issuing  from  a  court  they  must  be  tested  in  the  name 


1  Isett  V.  Stuart,  80  111.  404.  In 
some  of  the  States  the  statute  pro- 
vides for  actual  personal  service  with- 
out the  State,  and  permits  the  notice 
thereby  given  to  supersede  the  ne- 
cessity of  publication. 

2  Orendortf  v.  Stanberry,  20  111.  89; 
Miller  v.  Handy,  40111.  448;  Garland 
V.  Britten,  12  111.  232;  Besemer  v. 
The  People,  15  111.  439. 

3  Orondorff  w.  Stanberry,  20  111.  89. 
And  this  rule  has  not  been  chang'ed 
by  the  codes:  Blanchard  v.  Strait, 
8  How.  (N.  Y.)  84.  The  force  and 
effect  of  a  venue  in  a  judicial  writing 
is  to  indicate  the  county  wherein  the 
court  is  acting:  Van  Dusen  v.  People, 
78  III.  645. 

*  Orendorff  v.  Stanberry,  20  111.  89. 
A  code  summons  requiring  the  de- 
fendant to  serve  a  copy  of  his  answer 
upon  "the  subscriber,"  the  plaintiff's 


attorney,  at  a  place  designated,  is  suf- 
ficiently certain  under  the  code,  and 
confers  .iurisdiction:  Hotchkiss  v. 
Cutting,  14  Minn.  537. 

^  Curry  v.  Hinman,  11  111.  420. 
The  style  is  generally  constitutional. 

6  Ferris  v.  Crow,  5  Gilm.  (111.)  96. 

'  A  summons  issued  by  the  clerk 
of  one  county,  addressed  to  the 
sheriff  of  another  county,  command- 
ing him  to  summon  a  defendant  in 
his  county  to  appear  at  Lincoln,  in 
said  county,  is  void:  Gill  v.  Iloblit, 
23  111.  473,  and  see  Kenedy  v.  People, 
15  111.  418.  The  N.  Y.  code  sum- 
mons is  addressed  simply  to  the  de- 
fendant. 

*  Richardson  v.  Thompson,  41  111. 
202;  Rogers  v.  Green,  33  Tex.  661. 

8  .AIcDermid  v.  Russell.  41  111.  4S9; 
King  V.  Blood,  41  Cal.  yi4. 


452 


ABSTRACTS   OF   TITLE. 


of  the  clerk'  or  presiding  judge,''  and  must  bear  teste  of  tlie 
day  on  which  they  are  issued.'  By  some  of  the  codes,  tlie  sum- 
mons may  be  issued  by  an  attorney  of  the  court,  and  need  not 
be  signed  by  the  clerk  or  judge,  but  must  be  subscribed  by  the 
attorney  who  causes  same  to  issue/  Wlien  regarded  as  tlie 
direct  mandate  of  the  court,  a  seal  is  indispensable  to  its  va- 
lidity,^ but  under  the  code  system  this  is  unnecessary.' 

§  9.  Service.  To  bind  a  party  by  a  judicial  sentence  he 
inust  be  a  party  to  the  proceeding,  and  must  have  either  actual 
or  constructive  notice  thereof,^  or  enter  his  appearance.^ 
These  matters  are  jurisdictional,  and  where  the  service  of  the 
summons  is  insufficient  to  confer  jurisdiction,  the  judgment 
or  decree  as  to  the  defendants  is  a  nullity,^  and  open  to  attack 
in  all  collateral  proceedings.^"  The  return  of  the  officer  serv- 
ing the  process  must  show  strict  compliance  with  the  stat- 
ute, before  the  court  can  obtain  jurisdictiou  of  the  person," 
and  this  has  reference  both  to  the  time,  the  manner,  and  the 
person  on  whom  the  service  was  made.^^  When  personal  serv- 
ice can  not  be  made,  by  reason  of  the  absence  of  the  defendant, 
or  because  he  can  not  be  found,  a  substituted  service  is  pre- 
scribed by  statute,  but  in  making  this  service,  as  in  case  of 
constructive  service  by  publication,  the  requirements  of  the 
statute  must  all  be  strictly  complied  with,  and  this  must  af- 
firmatively appear  on  the  record.'^    Service,  or  constructive  no- 


*  Norton  v.  Dow,  5  Gilm.  459; 
Costly  V.  Driver,  45  Ala.  230;  Wil- 
son V.  Owen,  45  Ala.  451 . 

2  Brown  v.  Barker,  15  111.  307; 
Howerter  v.  Kelly,  23  Mich.  337. 

3  Brown  v.  Barker,  15  111.  307. 

*  See  Howard's  N.  Y.  Code  (1859), 
162. 

s  Besemer  v.  People,  15  111.  439; 
Morrison  v.  Silverburgh,  13  111.  551. 

^  For  a  brief  period  a  U.  S.  Rev. 
stamp  was  required  on  all  process, 
but  this  law  was  repealed  March  2, 
1S67;  see  14  U.  S.  Stat,  at  Large, 
475. 

'Borders    v.   Murphy,  78  111.81; 


Easterly  v.  Goodwin,  35  Conn.  273. 

8  Barker  v.  Ins.  Co.,  24  Wis.  630. 

»  Botsford  V.  O'Conner,  57  III.  72. 

10  Haywood  v.  Callins,  60  111.  328. 

"  Cost  V.  Rose,  17  111.  276;  Pardon 
V.  Dwire,  23  111.  572;  People  v.  Ber- 
nal,  43  Cal.  385. 

12  Botsford  V.  O'Conner,  57  111.  72; 
Hochlander  v.  Hochlander,  73  111. 
618;  Mack  v.  Brown,  73  111.  295; 
Eankin  v.  Dulaney,  43  Miss.  197; 
York  V.  Crawford,  42  Miss.  508; 
Hendley  r.  Baccus,  32  Tex.  328;  Van- 
diver  r.  Roberts,  4  W'.  Va.493;  Mel- 
vin  V.  Clark,  45  Ala.  285. 

>3Boyland  v.  Boyland,  18  HI.  551; 


CHANCERY    RECORDS    AND    PROCEEDINGS. 


453 


tice,  by  publication  was  only  obtainable  formerly  on  the  re- 
turn of  process  ^lo?^  est  inventus,  and  such  is  still  the  rule  in 
some  States,  but  ordinarily,  where  an  affidavit  of  non-residence 
has  been  filed  a  constructive  service  by  advertisement  may  be 
obtained.* 

In  all  cases  of  constructive  service  the  statute  must  be 
strictly  pursued,  and  as  the  affidavit  of  non-residence  consti- 
tutes the  basis  of  an  order  of  publication,  it  is  essential  that 
such  affidavit  should  appear  of  record,^  and  as  a  matter  of 
course  be  properly  exhibited  in  the  abstract  in  connection  with 
the  order  of  publication,  notice,  and  publisher's  proof  of  pub- 
lication. 

§  10.  Proof  of  Service.  The  service  of  a  summons  is  ordina- 
rily proved  by  the  return  of  tiie  sheriff  or  other  person  serv- 
ing it/  or  by  the  admission  of  the  person  so  served,*  but  in 
all  cases  where  the  record  shows  an  appearance  of  the  defend- 
ant, this  becomes  a  matter  of  minor  importance,  for  a  p^eneral 
appearance  is  an  admission  on  the  part  of  the  defendant  that 
he  has  been  regularly  brought  into  court,*  and  subjects  him  to 
tiie  jurisdiction  of  same.  In  all  such  cases  it  would  seem 
that   a   passing    reference  to   the   issuance     and     service  of 


Miller  v.  Mills,  29  111.  431 ;  Wells  v. 
Stumph,  88  111.  56;  Williams  v. 
Downea,  30  Tex.  51;  Brown  field  tJ. 
Dyer,  7  Bush  (Ky.),  605;  Mullins  v. 
Sparks,  43  Miss.  129. 

'  Millett  V.  Pease,  31  111.  377; 
Tibbs  V.  Allen,  27  111.  119;  Coons  v. 
Throckmorton,  25  Ark.  GO. 

'^  Bardsley  r.  Hincs,  3;'  Iowa,  157; 
Merrill  v.  Montironiery,  25  Mich.  73; 
Byrne  v.  Roberts,  31  Iowa,  319; 
Coons  V.  Throckmorton,  25  Ark.  60; 
Millett  V.  Pease,  31  111.  377.  In 
this  case,  while  holding  the  affidavit 
to  be  the  basis  of  the  order,  it  is  yet 
held,  that  where  the  record  shows  a 
notice  by  publication,  which  recites 
the  fact  that  an  affidavit  was  duly 
filed,  but  does  not  appear  of  record, 
the  court  will  presume  that  the  affi- 


davit was  duly  filed;  and  see  Tom- 
kins  V.  Wiltberger,  55  111.  385. 

^  No  person  can  execute  a  process 
in  his  own  favor:  Snydacker  v. 
Brown,  51  111.  357. 

*  An  admission  of  service  is  not 
very  satisfactory  as  evidence.  The 
court  takes  judicial  notice  of  the  sig- 
natures of  its  officers,  but  is  not 
presumed  to  know  the  signature  of  a 
party  defendant,  who  has  not  ap- 
peared: Litchfield  v.  Burwell,  5  How. 
(N.  Y.)  341. 

"Dix  V.  Palmer,  5  How.  (N.  Y.) 
233;  Webb  v.  Mott,  6  How,  (N.  Y. ) 
439;  Barker  v.  Ins.  Co..  24  Wis. 
630;  Bustamete  r.  Bescher.  4!  Miss, 
172;  Bowin  v.  SullKrliii,  44  Ala. 
278. 


454  ABSTKACTS   OF    TITLE. 

sutnmons  would  be  sufficient,  thoui^^h  many  attorneys  require 
a  synopsis  or  full  transcription  of  the  officer's  return,  partic- 
ularly in  the  case  of  infants,  lunatics,  and  persons  under  dis- 
ability, when  the  appearance  is  by  guardian.  But  where  a 
plaintiff  undertakes  to  obtain  a  judgment  or  decree  against  a 
defendant,  without  any  appearance  by  the  latter,  either  in 
person  or  by  attorney,  he  is  required  at  his  peril  to  bring 
such  defendant  within  the  jurisdiction  of  the  tribunal  in 
which  he  is  proceeding,  or  liis  proceedings  will  be  set  aside 
as  irregular,  and  totally  defective  and  void.^  "Whenever, 
therefore,  the  record  shows  no  appearance  it  is  advisable  that 
all  matters  relating  to  service  be  shown  minutely  and  in  de- 
tail. In  case  of  personal  service,  show  the  return  briefly. 
In  case  of  substituted  service  show  the  return  entire;  that  is, 
a  literal  transcription.  If  the  service  is  effected  by  notice 
and  publication,  show  a  synopsis  of  the  notice  and  proof  of 
publicatitui.  The  advertisement  in  the  latter  case  performs 
the  same  office  as  process,^  and  it  is  not  enough  that  the  de- 
cree recites  that  the  defendant  has  been  duly  served,  or  that 
he  has  been  regularly  notified;  the  record  should  show  process 
or  notice  duly  served  or  published  and  a  decree  jyro  confesso, 
is  rendered  erroneous  and  invalid  when  these  ])articulars  are 
wanting.^     A  decree  rendered  upon  the  constructive  notice 

1  Williams  r.  Valkenburg,  16  How.  be  collaterally  called    in   question: 

(N.  Y.)  144;    Roberts  v.  Stowers,  7  Harrington  v.  Wofford,  46  Miss.  31. 

Bush   (Ky.),  295;  Grantem  «?.  Rose-  ^Kf^^dall  v.   Sonsrer,    16    111.  27; 

cierrance,  27  Wis.  488.     A  distinc-  Church  v.  Furniss,  64  N.  C.  659. 

tion  is  sometimes  made  between  a  ^  Reddick  v.   State  Bank,  27  111. 

total  want  of  service  of  process,  and  145.     This  doctrine  has  been  some- 

a  defective  service,  as  to  their  effect  what  modified  by  later  decisions,  and 

in  judicial  proceedings.     In  the  one  every  reasonable  presumption   will 

case  a  judgment  or  decree  is  held  to  be  indulged  in  favor  of  the   juris- 

be  coram  non  judlce  and  void.     In  diction  of  a  court  whose  decrees  re- 

the  other,  the  defective  service  gives  cite  due  process  and  service,  and  such 

the  defendant  actual  notice  of  the  recitals  are  generally  held  to  be  ^jri- 

proceedings   against   him,    and    the  ma  facie  evidence  of  the  jurisdic- 

judgment  or  decree,  although   erro-  tional  facts:    Turner  r.  Jenkins,  79 

neous,  is  valid   until   reversed  by  a  111.  228;  Tompkins  v.  VViltberi;er,  56 

direct    proceeding    in  an  appellate  111.  385. 
jurisdiction;  and  its  validity  can  not 


CIIAXCERY    RECORDS   AND    rKOCEEDINGS.  455 

afforded  by  ]niblication  is  not  regarded  in  niaiiy  States  as 
final  or  conclusive  upon  the  sul)ject  presented,  I'or  considera- 
ble time  after  its  rendition,  and  is  liable  to  be  vacated  in  the 
interests  of  justice,  where  ajiplication  is  made  in  apt  time, 
and  of  these  facts  purchasers  or  others  dealing  with  the  title 
to  land  are  bound  to  tuhe  notice.' 

§  11,  Master's  and  Referee's  Reports.  Frequently  during 
the  progress  of  a  cause  a  reference  is  made  to  a  master  or  ref- 
eree to  ascertain  some  particular  fact,  or  for  a  trial  of  the 
whole  issue,  and  the  manner  in  wliich  the  master  or  referee 
presents  his  opinion  and  the  result  of  his  inquiries  to  the 
court,  is  either  by  a  certificate  or  report,  A  certificate  is  a 
simple  notification  of  a  fact,  or  of  an  opinion,  or  a  conclusion; 
reports  are  the  results  of  his  itiquiries  with  his  findings  or 
conclusions,  and  opinions  thereon.^  References  are  more  fre- 
quently made  to  state  an  account,  or  for  other  matters  arising 
out  of  commercial  transactions,  but  occasionally  references  of 
title  are  made,  and  these  will  sometimes  require  notice  in 
making  up  a  synopsis  of  chancery  proceedings.  All  reports, 
upon  which  are  founded  decrees  or  decretal  orders,  require 
confirmation.  Judicial  sales  are  frequently  conducted  l)y  a 
master  or  commissioner,  and  a  circumstantial  rej^ort  of  such 
sale  must  be  reported  to  and  a])proved  and  confirmed  by  the 
court  ordering  same,  and,  though  it  is  not  usual  to  abstract 
this  report,  where  the  decree  and  deeds  are  shown,  some 
allusion  must  be  made  to  it. 

§  12.  Verdicts.  The  original  chancery  practice  did  not 
contemplate  the  intervention  of  a  jury,  but  all  facts  were 
found  by  the  court.*  Issues  were  sometimes  made  uj)  and 
submitted  to  a  jury,  and  such  is  still  the  general  ]iractice, 
though  under  the  codes  all  questions  of  fact  in  litigated  cases, 
whether  the  action  be  legal  or  equitable,  may  be  and  usually 
are,  the  subject  of  jury  trials.  The  verdict  of  a  jury  on  an 
issue  which  a  court  of  u(piity  has  directed  them  to  try   is   ad- 

*  Southern  Bank  r.  Ilumphrej-s,  47  934. 

111.  227.  ^  Oral  oxnminiitions  were  not  for- 

2  2  Smith's  Ch.  Trnc.  *1G1 ;  2  Barb.  merly  permitted. 
Ch.  I'rac.  *  544;     2   Dan.  Cli.  I'rac. 


456  ABSTRACTS    OF   TITLE. 

visory  merely,'  and  is  not  conclusive  on  the  conrt,^  who  may 
reverse  the  verdict  and  render  a  decree  opposed  to  the  find- 
ini^s  of  the  jnry.^  As  a  material  ])oint,  however,  when  acted 
upon  by  the  court,  the  verdict  shonld  be  appropriately  noticed, 
which  can  ordinarily  be  accomplished  by  a  statement  of  the 
issue  presented  and  the  findins^  made  thereon. 

§  13.  Abstract  of  Chancery  Proceedings.  In  presenting 
minutes  of  equitable  actions  involving  title  much  nice  dis- 
crimination is  necessary  in  order  that  the  abstract  may  show 
a  perfect  resume  of  the  proceedings  and  all  the  material  points 
presented,  and  yet  not  become  unwieldy  or  burdensomely  op- 
pressive. The  name  of  the  court  in  which  the  action  is  ]  ros- 
ecuted;  the  title  of  the  cause;  case  number,  and  date  of  com- 
mencement of  the  action  come  first,  and  in  the  order  indica- 
ted. Then  follows  a  brief  statement  of  the  material  parts  of 
the  bill,  avoiding  all  repetition  and  surplusage.  The  subse- 
quent steps  next  follow  in  chronological  sequence  down  to  the 
final  determination  or  decree  which  is  usually  shown  in  full. 
The  examples  given  in  this  section  and  other  parts  of  this 
chapter  will  fully  serve  to  illustrate  the  matter.  Where  the 
case  is  still  undetermined  at  the  time  of  the  search,  or  has  not 
vet  come  on  to  be  heard,  the  examiner  sets  out  only  so  much  as 
appears  of  record,  and  indicates  the  condition  of  the  cause  by 
adding  the  word  "  pending,"  thus, 

In  the  Circuit  Court  of  Coo'k.  County^  Illinois. 
William  Sehafer  "]      ^Case  No.  12,510. 

vs.  )■      In  Chancery. 

Henry  Brown.  j      Bill  filed  July  16^  187 J/,,  sets 

forth  that  on  or  about  June  12^ 

I87J1,,  complainant  entered  into  a  contract  with  said  defend- 

1  Quinby  v.  Conlan,  104  U.  S.  420;  law.     See  Stanley  v.  Risse,  49  Wis. 

Rnslingr.  Rusling,    35    N.  J.  Eq.  219. 

120;     McGan  v.  O'Neil,    5  Col.    58.  ^  Rusling  v.  Rusling,    35    N.  J. 

It  would  seem  that  thiis  principle  has  Eq.  120;   Marshall    v.  Marshall,   18 

not  been  materially  changed  by  the  W.  Va.  395;     Stanley  v.  Risse,  49 

code,  although  the  forms  of  action  Wis.      219;      Contra,     Marvin     v. 

have  been,  and  that  the  verdict  is  Dutcher.  26  Minn.  391. 

only  in  aid  of  the  court,  and  does  not  ^  Ivy  t?.    Clawson,    14  S.    C.    267; 

have  the  same  etiect  as  a  verdict  at  Wakefield  v.  Bouton,  55  Cal.    109; 


CHANCERY    RECORDS    AND    TROCEEDINGS.  457 

ant  to  convey  to  lain  all  las  right,  title  and  interest  in  and 
to  certain  property  in  Mc Henry  Co.,  Ills.,  and  that  said  de- 
fendant agreed  to  convey  to  him  all  his  right,  title  and  in- 
terest in  ani  to  Lot  30,  in  Block  3,  in  Bowman'' s  Subdivis- 
ion of  jpart  of  the  East  half  of  South  East  quainter,  of 
North  East  qitarter  of  Sec.  6,  Town  30  North,  Range  11^, 
East  of  3d  P.  M. 

Prays,  that  said  defendant  he  adjudged  to  specifically 
perform  the  said,  contract,  and  to  convey  to  complainant  the 
said  premises,  and  to  furnish  an  Abstract  of  Title  to  said 
property  showing  clear  and  perfect  title  to  same,  and  that 
defendant  be  compelled  to  pay  to  complainant  the  damage 
he  has  sustained  by  his  refusal  to  perform  said  contraety 
etc. 

{Pending.) 

A  continuation  sliould  take  w\>  tin's  case  at  tliis  point,  and 
show  all  subsequent  proceedings;  thus, 

In  the  Circuit  Court  of  Cook  County,  Illinois. 
William  Shafer  )      Case  No.  13,510. 

vs.  >      In  Chancery. 

Henry  Brown.  )      The     following     proceedings 

have  been  had  in  this  cause  since 
July  18,  187 If.     {Chancery  record  Jf.3,page  17.) 

Aug.  18,  1871i,,  suit  dismissed  at  co mplainanf  s  costs  for 
want  of  prosecution}     {Costs  paid.) 

The  further  examples  c^iven  in  tiiis  cliapter  of  s])ccial  pro- 
ceedings in  the  dilierent  chancery  actions,  will,  it  is  believed, 
furnish  sufficient  data  for  any  exigency  that  may  arise,  wliile 
the  examiner  will  have  no  difficulty  in  ada|)ting  them  to  de- 
tails or  differences  of  practice  in  his  own  State.'^ 

Smith  V.  Richardson,  5   Utah,   424;  a  subsequent  suit  for  the  sani<^  mat- 

Swegle  V.  Wells,  7  Or.  222;   Gladsen  ter:      Porter    v.   Vaiighan,   26   Vt. 

V.  Whaley,  9  S.  C.  147;     Austin  v.  624. 

Bainter,  50  111.  308.  ^  In  connection  witli  this  chapter 

'  An  order  or  deci-ee  dismissing:  a  the  reader  is  referred  to  the  chapter 

suit  for  want  of  prosecution,  is  Hke  of   this    work  entitled  "Execution 

a  uon  suit  at  law,  and  is  not  a  bar  to  and  Judicial  Sales." 


458  ABSTRACTS   OF    TITLE. 

§  14.  Fraud,  Accident  and  Mistake.  Under  the  head  of 
''remedial  equity,"  are  always  classed  in  the  text  books  a 
group  of  incidents  known  as  fraud,  accident,  and.  mistake.  A 
court  of  law  has  no  power  to  correct  mistakes  and  reform 
contracts  so  as  to  make  them  conform  to  the  real  intention  of 
the  parties,*  and  for  this  reason  the  elastic  powers  of  erpiity 
are  invoked.  The  subjects  covered  by  and  included  in  the 
exercise  of  this  power  are  very  numerous,  and  extend  to  lost 
instruments,^  mistakes  in  written  instruments,*  fraudulent 
conveyances,*  and  claims  of  title  tainted  with  fraud;*  and  the 
court  will  o-rant  relief  in  all  cases  of  unavoidable  accident 
unmixed  with  laches;"  or  when  it  is  clearly  made  to  appear 
that  an  instrument  was  entered  into  and  executed  under  mis- 
take;' or  when  a  party  has  lost  title  or  possession  through 
fraudulent  means;®  and  by  annulling,  reforming  or  restrain- 
ino-  the  contract,  prevent  it  from  becoming  an  instrument  of 
injustice,  fraud  or  oppression,^  The  exercise  of  the  power 
affects  title  in  a  vast  number  of  ways,  and  is  constantly  met 
with  in  actions  relative  to  land,  for  it  may  always  be  invoked 
when  inequitable  loss  or  injury  will  otherwise  fall  upon  a 
party,  from  circumstances  beyond  his  own  control  or  from 
his  own  acts  done  in  good  faith  and  in  the  performance  of  a 
supposed  duty,'**  but  not  unless  he  has  used  due  diligence  and 
good  faith  to  avoid  the  consequences  of  his  acts,  nor  where,  by 
liis  delay,  irreparable  injury  would  result  to  another." 

§  15.     Injunctions.     An  injunction  is  a  writ,  commanding 
or  restraining  the  commission  of  some  act,  to  serve  the  pur- 

1  Cunningham  v.  Wrenn,  23  111.       ^36;  Hearst  v.  Pngol,   44  Cal.  230; 
64.  Miller  v.  Davis,  10  Kan.  541. 

2  Patton  ('.  Campbell,  70  111.  72.  «  How    v.    Mortell,    28    111.    478; 
» Bergen  v.  Ebey,  88  111.  269;    Au-      Wilson  v.  Eggleston,  27  Mich.  257. 

gust  V.  Seeskind,  6   Coldw.  (Tenn.)  « Weaver    v.   Poyer,    79  111.  417; 

167;     Dunbar  v.  Newman,  46  Miss.  Adams  v.  Jones,  89  Ga.  479;  Simon- 

231.  ton  V.  Bacon,  49  Miss.  582;      Sieve- 

♦Mendenhall  v.  Treadway,  44  Ind.  king  v.  Litzler,  31  Ind.  13. 

131.  10  Weaver  v.   Poyer,  79   111.    417; 

^Kennedy  iJ.Northrup,  15  111.  148.  Hearst  !?.  Pugol,  44  Cal.  230;    Loss 

■5  Gotten  V.  Reed,  20  111.  607.  v.  Obry,  22  N.  J.  Eq.  52. 

^McCloskey  v.  McCormick,  44  111.  "  Thomas  r.  Bartow,  48  N.  Y.  193. 


CHANCERY    RECORDS   AND    TROCEEDINGS. 


459 


poses  of  equity  and  good  conscience.  In  tlie  endless  variety 
of  cases,  wliere  a  plaintilf  is  entitled  to  equitable  relief,  if  that 
relief  consists  in  restraining  the  commission  or  continuance 
of  some  act  of  the  defendants,  a  court  of  equity  will  adminis- 
ter it,  by  means  of  the  writ  of  injunction.'  Injunctions  are 
rai'ely  shown  in  al)stracts  of  title,  and  when  shown  have  refer- 
ence usually  to  transitory  matters  which  affect  tlie  title  only 
incidentally,  being  connected  rather  with  the  use  and  occupa- 
tion of  the  land,  than  with  any  matter  which  goes  to  the  title. 
Temporary  injunctions  restraining  the  sale  of  land  pending 
litigation^  will  sometimes  be  found,  as  well  as  writs  resti-ain- 
ing  the  action  of  public  officers,  who,  under  a  claim  of  right, 
are  proceeding  illegally  to  im])air  the  rights  or  injure  tlie 
property  of  individuals  or  corporations,*  as  also,  to  ])revenl  a 
multiidicit}^  of  suits.*  Injunctions  are  granted  upon  motion 
in  pursuance  of  the  statute  and  are  usually  auxiliary  lo  some 
legal  proceeding  then  commenced  or  pending,  and  may  be 
shown,  when  material  to  the  title,  either  in  connection  with 
such  ))ending  suits, or  as  independent  exhibits.  An  injunction 
which  has  been  dissolved  does  not  call  for  notice.  Perpetual 
injunctions,  when  relating  to  matters  which  directly  concern 
title,  become  permanent  muniments,  and,  of  course,  must  be 
regularly  shown  in  connection  with  the  enjoined  matter. 
This  will  be  the  case  in  respect  to  i-ights  of  way  appurtenant 
to  land;*  or  of  deeds  declared  to  be  void,  when  attempted  to 
be  used  as  evidence  of  title;®   and  of  judgments  which  have 


'  Etlen  on  Inj.  2;  Oliver's  Forms, 
52 

2  Camp  V.  Bates,  11  Conn.  51;  Sid- 
ener  v.  White,  46  Ind.  5S8;  Fehrle 
I'.  Turner,  77  Ind.  5:50  (reversing,  34 
Ind.  800).  An  injunction  is  a  pre- 
ventive remedy  and  can  not  be  in- 
voked to  command  a  party  to  undo 
what  he  has  done  or  restrain  him 
from  doing  an  act  which  he  is  alleged 
to  have  already  done:  Wangolin  v. 
Goi>,  50  111.  459. 

'Smith  V.  Bangs,  15  111.  3fl9;  Mc- 
In^yre  v.  Mclntyre,  80  111.  127;  Kean 


r.  Ash,  27  N.  J.  Eq.  57.  The  writ 
is  often  employed  in  disputes  between 
the  civic  authorities  and  individuals 
relative  to  rights  of  way,  occupation 
of  streets,  etc.:  Pettibone  v.  Hamil- 
ton, 40  Wis.  402;  Knox  r.  Police 
Jury  of  Baton  Rouge,  27  La.  An.  204. 

*  Lutes  V.  Briggs,  5  Hun  (N.  Y.), 
G7. 

^Truehart  r.  Price,  2  Munf.  (Ya.) 
488. 

*  Bushnell   v.   Harford,   4    Johns. 
Ch.  302. 


4G0  ABSTRACTS    OF   TITLE. 

become  invalidated  for  any  reason.^  A  pei-petual  injnnction 
to  qui  ;t  title  will  sometimes  lie  when  therelias  been  no  ti-ial  at 
law;  as  wlien  the  party  having  possession  is  disturbed,  but 
not  so  dispossessed  as  to  make  it  the  subject  of  an  action 
at  law.^ 

§  16.  Ejectment — Origin  and  History.  The  action  of  eject- 
ment is  said  to  have  originated  during  the  reign  of  Edward 
III,  at  some  period  uncertain  between  the  years  1327  and  1377, 
and  was  at  first  a  mere  action  of  tres])as3  to  recover  damages 
from  an  intruder  who  had  usurped  possession.^  A  new  feat- 
nre,  not  contemplated  by  the  original  writ,  was  soon  intro- 
duced,* for  tlie  purpose  of  enabliuLr  the  plaiiititf  to  recover  the 
term  as  well.  It  was  originally  brought  only  by  a  lessee,  to  re- 
cover possession  of  the  lands  from  which  he  had  been  ousted,  and 
in  its  strictly  technical  sense  is  still  an  action  for  the  recovery 
of  the  possession  of  real  estate,  but  in  practice  it  is  more  gen- 
erally used,  both  in  England  and  the  United  States,  to  deter- 
mine the  title  to  lands,^  to  which  possession  attaches  itself  as  an 
essential  attribute.  Under  the  statute  it  possesses  little  of  its 
original  features,'  while  its  general  scope  has  been  so  extended 
that  it  is  competent  to  determine  almost  every  question  that 
can  arise  in  conflicting  titles.  It  is  now  regarded  as  a  legal 
remedy,'  to  be  prosecuted  only  by  the  real  parties  in  interest,^ 
having  the  legal  title  to  the  land,®  and  can  be  brought  only 
against  the  person  in  possession  of  the  premises,  if  they  are 
occupied,'"  or  against  a  person  claiming  title,  etc.,  when  out  of 

iKruson  v.  Kruson,  1  Bibb.  (Ky.)  ^Gnyer  v.  Wookey,  18  111.  536. 

184;  Bvinkerhoff  f.  Lansing,  4  Johns.  *  As  originally  administered  it  de- 

Ch.  69;  Gairity  v.  Russell,  40  Conn.  pended  upon  a  series  of  legal  fictions 

450;  Daltonr.  Laniburth,  9Nev.  192.  and  feigned  issues:   3  Black.  Com. 

2  Trustees  of  Louisville  v.  Gray,  1  200. 

Litt.  (Ky.)  148.    The  writ  of  injunc-  '  Gillett  v.  Neganza,  13  Wis.  472; 

tion,   as  a  provisional  remedy  has  Guyer  i).  Wookey,    18  111.  5o6;   Joy 

been  abolished  by  the  codes,  which  v  Berdell,  25  111.  537. 

substitute  a  statutory  remedy  by  or-  ^  Hanson «;.  Armstrong,  22  III.  442; 

der;  but  the  nature  of  the  remedy  Thompson  v.  Schuyler,  2  Gilm.  (III.) 

has  not  been  changed.  271. 

3  Tyler  Eject.  34.  ^  Allen  v.  Smith,  6  Blackf.  (Ind.) 
*  Supposed  to  be  about  the  year  627;   Morton  v.  Greene,  2  Neb.  441. 

14j5.  ^^  Persons  in  possession  merely,  such 


CUANCERY   RECORDS   AND    PROCEEDINGS.  4C1 

possession,  and  when  the  premises  are  vacant  and  unoccupied. 
In  all  ejectment  actions  tlie  plaintiff  must  recover  on  the 
strength  of  his  own  title,^  without  regard  to  tlie  weakness  of 
his  adversary's,'  and  the  legal  title,  under.  tJie  strict  rules  of 
law,  will  always  prevail  against  any  equity.*  In  many  States, 
however,  equitable  defenses  are  permitted,*  and  in  a  few  the 
remedy  is  regarded  as  strictly  equitable.®  It  is  used,  not  only 
to  determine  the  title  of  parties  flowing  from  the  same  souj-ce, 
or  to  settle  conflicting  adverse  titles  derived  from  independent 
sources,  but  also  by  purchasers  iinder  execution  and  judicial 
sale  to  obtain  the  possession  of  the])r<)perty  purchased  and  ex- 
tinguish the  occupying  claimant's  rights. 

§  17,  Operation  and  Effect  of  Ejectment.  At  common  law 
a  judgment  or  decree  in  ejectment  is  not  regarded  as  conclu- 
sive in  respect  to  the  question  of  title,  but  as  a  recovery  of 
tlie  possession  without  prejudice  to  the  right,  as  it  may  after- 
ward appear,  even  between  tlie  same  parties,'  but  wherever 
the  common  law  form  of  the  action  is  abolished,  and  same  is 
prosecuted  by  the  real  parties  in  interest,  in  their  own  names, 
the  judgment  is  an  estoppel  and  a  valid  bar  to  any  subsequent 
action,  unless   such  privilege   is   expressly  given  by  statute.^ 

as  servants  or  employes  of  the  party  iff:  Tilgbman   r.  Little,  13  111.  ^o9; 

claimingr  adversely,  arc  not  occupants  Thompsons.  Graham,  9  Phil.  (Pa.) 

within  the  meaning  of  the  law :  Chin-  53. 
quy  V.  Catholic  Bishop,  41   III.  148.  ^  ]\i-,^j,terson  v.  Cheek,  23  III.  72. 

1  Hanson  v.  Armstrong,  22  111.  442.  *  Franklin  v.  Palmer,    50   111.  202; 

2 Marshall    p.  Barr,    35    111.    106;  Buell  r.  Irwin,  24  Mich.  145;   Phil- 

Lathrop  v.  Am.  Emig.  Co.,  41  Iowa,  pots  v.  Blasdel,  8  Nev.  61;  Kennedy 

547;      Foster    v.    Evans,     51     Mo.  v.  Johnson,  69  N.  C.  249;  Mulford  v. 

39.     Although  he  must  recover  on  Tunis,  35  N.  J.  L.  256. 
the  strength  of    his  own  title,  and  ^This  is  substantially  true  of  all 

not  on   the  weakness  of  his  adver-  "Code   States."     See    Williams  r. 

sary's,  there  are  yet  some  apparent  Murphy,  21  Minn.  534;  Hoppough  r. 

exceptions  to  the  rule;    as,  when  the  Struhle,  69  N.  Y.  430. 
defendant  was  admitted  into  posses-  ^  Such  is  the  case  in  Pennsylvania: 

sion  under  a  contract  of   purchase;  Sower  r.  Weaver,  78  Pa.  St.  44^3. 
and  the  action  is  to  regain  possession,  'Mitchell  v.   Robertson,  15  Ala. 

or  where  the  action  is  by  a  landlord  412;  Holmes  ».  Carondolet,  ;:18   Mo. 

against    his  tenant,  such    relations  551;    Smith   r.    Sherwood,  4   Conn, 

will  dispense  with   any  production  276;  Atkins  »\  Horde,  1  Burr.  114. 
of  title  on  the  part  of    the  plaint-  ^Freem-on  Judgts.  §290;  Camp- 


462  ABSTRACTS    OF    TITLE. 

Where  a  recovery  is  had  against  the  occupant,  the  jiulgiTient 
binds  not  only  him,  but  all  ])ersons  in  privity  of  estate  or 
possession  with  hini,^  and  concludes  them  from  again  litigat- 
ing the  same  title,^  but  is  not  necessarily  a  bar  to  a  sul)seqnent 
suit,  or  to  defences  set  up  in  a  subsequent  suit,  unless  the 
titles  and  defences  are  precisely  tlie  same  as  in  the  first  suit.* 
Nor  does  a  judgment  in  ejectment  transfer  to  the  successful 
party  the  title  of  the  adverse  party,  but  if  presented  in  the 
proper  mode,  whenever  such  adverse  title  is  drawn  in  issue, 
it  shuts  out  all  proof  of  same,  and  its  effect  bears  a  closer  re- 
semblance to  an  extinguishment,  than  a  transfer  of  the 
adverse  title.  The  judgment  awards  the  possession  to  the 
prevailing  party,  because  he  had  title  at  the  commencement 
of  the  action,  and  because  the  losing  party  had  no  title,  or 
not  such  a  title  as  would  authorize  him  to  withhold  the  pos- 
session; but  it  neither  directly  nor  indirectly  transfers  the 
title.*  Inasmuch  as  the  judgment  is  conclusive  on  the  rights 
of  the  parties  to  the  subject  matter  of  the  action,  and  all 
persons  claiming  by,  through  or  under  them  by  title  accruing 
after  the  commencement  of  the  action,^  the  abstract  should  fully 
show  the  points  presented,  their  relation  to  the  land,  and  the 
final  disposition  made,  which  may  all  be  easily  accomplished 
by  a  full  synopsis  of  the  pleadings,  the  verdict,^  and  the 
judgment  or  decree. 

§  18.  Quia  Timet.  This  is  an  anticipatory  remedy  to 
quiet  the  title  to  lands,  and,  unlike  ejectment,  is  brouirht  only 
by  the  person  in  possession  of  the  land,  or  one  claiming  to  be 
the  owner  when  the  lands  are  unimproved  or  unoccupied.     It 

bell  r.  Hall,   16  N.  Y.  575;  and  see         ^  Where  the  verdict  fails  to  specify 

Clarkson  v.  Stanchfield,   57  Mo.  573.  any    estate,  judgment    can  not  be 

'Hanson  v.   Armstrong,     22   HI.  rendered  on  it:  Long  t\  Linn,  71  111. 

442;     Rodgers  v.   Bell,  53  Ga.  94;  152,  but  a  finding  that  the  plaintiff 

State  V.  Orwig,  34  lova,  112.  is  the  owner  of  the  land  is  sufficient- 

2  Amesti  v.  Castro,  49  Cal.  325.  ly  explicit  as  to  the  plaintiff 's  title: 

3 Fosters.  Evans,  51  Mo.  39.  Haddock  v.  Haddock,    22  111.  384;  , 

*Maiioney  r.  Middleton,   41    Cal.  when  tried  by  the  court  the  finding 

41.  and  judgment  must  be  for  the  prem- 

^  Sheridan  v.  Andrews,  3  Lans.  (N.  ises  described  in  the  proceedijig  and 

Y.)  129;  Amesti  17.   Castro,   49  Cal.  the  character  of  the  estate  recovered: 

325.  Hardmg  v.  Strong,  42  111.  148. 


CIIAXCEKY    KECOKDS    AND    PKOCEEDINGS.  4G3 

is  an  ancient  chancery  remedy,  but  in  most  of  the  States  is 
now  a  statutory  action,  resorted  to  for  the  purpose  of  quieting 
the  title  or  the  removal  of  a  cloud,*  and  equity  is  invoked 
to  reach  persons  out  of  possession,  who  can  not  be  compelled 
to  defend  their  right  at  law.^  Tlic  possession  which  confers 
jurisdiction  in  such  cases  must  have  been  acquired  in  a  lawful 
way,*  though  the  complainant  is  not  bound  to  show  a  perfect 
title  as  against  all  the  world,*  as  in  case  of  one  seeking  to 
recover  possession,  and  tlio  title  asserted  must  be  the  legal 
title,^  or  at  least  the  complainant  must  be  the  real  owner.* 
An  equitable  claimant,  who  is  not  in  possession,  can  not  in- 
voke the  aid  of  a  court  to  quiet  his  title  and  remove  the 
cloud  cast  upon  it  by  other  claimants.'' 

§  19.  Partition.  Originall}^  partition  could  only  be  en- 
forced between  co-parceners,  but  by  statute  in  England  at  an 
early  day,  compulsory  partition  was  allowed  between  joint 
tenants  and  tenants  in  common,  but  the  right,  as  exercised 
there  and  in  this  country  as  well,  is  given  only  to  one  having 
an  actual  or  constructive  possession  of  the  lands  sought  to  be 
partitioned.  Hence,  unless  the  statute  expressly  provides 
otherwise,  the  right  is  peculiar  to  those  having  a  present 
estate,  which  carries  with  it  the  right  of  possession,  and  nec- 
essarily excludes  remainder-men  and  reversioners,  who  have 
simply  an  estate  to  vest  in  possession  in  futuro.^  Partitions 
occur  in  many  titles  of  long  standing,  particularly  in  agricult- 
ural lands  and  large  tracts,  and  as  the  interests  of  minor 
heirs  and  others  under  disability  are  frecjuently  involved,  the 
proceedings  should  show  allirmatively  a  full  statutory  com- 
pliance.    The  procedure  is  substantially  the  same   in   all   the 

'  Hardin  v.  Jones,  86  111.  313;  Col-  da  v.  Saire,  48  N.  Y.  173. 

lins  V.  Collins,  19  Ohio  St.  468.  «  Carlisle  v.  Tindall.  49  Miss.  229; 

2  Barron  v.  Robbins,  22  Mich.  42.  L»e  v.  Ruggles,  62  111.  427;  Eidon  i\ 

8  Hardin  v.  Jones,  86  111.  313.  Eiden,  41  Wis.  460. 

*Rucker  v.   Dooley,   49   111.  377;  'Herringbone.  Williams,  31  Tex. 

Schroeder  v.  Gurncy,  17  N.  Y.  Sup.  448. 

Ct.  413.  « Sullivan   v.   Sullivan,    66    N.  Y. 

s  San  Dic^ro  v.  Allison,  46  Cal.  102;  37;  Spifrht  r.  Waldron,  'A  Miss.  3:.6; 

O'Brien  v.  Creig,  10  Kan.  202;  Fon-  Scarborough  v.  Smith,  18  Kan.  399. 


46-4  ABSTRACTS   OF   TITLE. 

States,'  making  due  allowances  for  minor  differences  of  prac- 
tice, and  involves  a  presentation  of  the  case  to  a  court  of 
competent  jurisdiction;  a  decree  defining  the  interests  of  the 
parties;  the  appointment  of  a  master  or  commissioners  to 
execute  the  decree  and  make  partition,  or  to  inquire  into 
the  expediency  of  same  or  susceptibility  of  tlie  propert}^  to 
partition;  the  report  of  the  commissioners;  and  confirmation 
or  final  decree.  All  of  the  foregoing  steps  are  essential,  and 
form  regular  links  in  the  chain  of  title.  It  is  customary  under 
the  old  chancery  practice  to  decree  a  mutual  interchange 
of  deeds,  but  statutory  power  is  now  generally  given  to  con- 
firm title  in  the  parties,  in  cases  of  partition,  wit'io  it  this 
formality.^  The  ^earee  \&  prima  facie  evidence  of  title  in 
favor  of  each  of  the  parties  to  the  particular  tract  adjudged  to 
him,^  and  conclusive  against  all  the  parties  before  the  court, 
and  their  privies.*  The  decree  under  the  statute  may  be  final 
and  conclusive  as  evidence  between  the  parties,  witliout  the 
interchange  of  deeds,  either  by  the  parties  or  commissioners, 
as  it  ascertains  all  the  rights  involved,  and  leaves  nothing  to 
be  done  but  to  carry  it  into  effect.  It  does  not,  however, 
vest  in  either  of  the  co-tenants  any  new  or  additional  title  in 
respect  to  the  respective  parcels  set  oft'  to  each,  but  simply 
severs  the  unity  of  possession  tlieretofore  existing.®  Where 
title  is  deduced  through  a  decree  of  partition  dividing  the 
land  between  the  heirs  of  a  deceased  owner,  the  adjudication, 
where  the  court  has  jurisdiction,  finding  who  are  the  heirs  at 
law  of  the  deceased  owner,  is  prima  facie  evidence  of  who 
were  the  heirs  and  owners  of  the  land  whose  interests  were 
decreed  to  be  sold;  and  in  an  action  of  ejectment  brought  b}'^ 
such  purchaser  against  a  stranger  to  the  partition  suit,  the 
plaintiff  is  not  bound  to  produce  evidence  of  heirship  outside 
of  such  decree,  in  the  absence  of  i~)roof  to  the  contrary.     The 

'  Under  the  statute  the  action  for  ^  Word  v.  Douthett,  44  Tex.  365. 

partition  of  lands  is  a  suit  at  law  in  *Freera.      on     Judg'ts,     §    308; 

some  of  the  States,  and  not  in  equity,  Wright  p.  Marsh,  2  G.  Greene,  94; 

and  is  a  substitute  for  the  old  com-  Allie  v.  Schmitz,  17  Wis.  169;  Smith 

mon  law  action  of  partition:   Hop-  v.  Crawford,  81  III.  296. 

kins  V.  Medley,  97  111.  402.  MVade  v.  Deray,  50  Cal.  376. 

2  Smith  V.  Crawford,  81  111.  296. 


CHANCERY    RECORDS    AND    PROCEFDINGS.  405 

doctrine  that  judi^meiits  and  decrees  are  evidence  only  in 
suits  between  parties  and  privies  has  no  application,  it  would 
seem,  to  such  a  case,*  Tiie  synopsis  which  follows  will  serve 
to  fairly  indicate  the  method  of  showing  a  partition,  and  will 
also  serve  as  a  precedent  for  other  chancery  actions: 

In  Circuit  Court  of  Cooh  County^  Illinois. 
Rolert  E.  Jones,        ^       Case  No  39,379. 
vs.  I        In  Chancery. 

Edward  C.  WaU-er,  \       I]  ill  fled  Oct.  U,  1S8L 

Thomas    Cannon,  Sa-  I       Hepvesents   that    complainant 
rah  C.  Newhouse,  a  mi-  '  and  defendant  Edvaard  C.  Walk- 
nor,    and    James     IF.      er^  are  the  owners  each  of  an  un- 
Nevihouse,  her  guard-      divided  one  half  as    tenants  in 
ian  and  next  friend.    J   common  of  Lot  80,  School  Trus- 
tees'' Subdivision   of  the   North 
part  of  Section  IG,  Town  39  North,  Range  13,  east  of  3d  I\ 
M.,  heing  now  subdivided  into  sixteen  lots  and  known  as 
Secrisfs  Subdivisio)i  of  said  Lot  80. 

That  defendants,  Sarah  C.  Newhouse,  a  minor,  and 
Thomas  Cannon,  have  or  claim  to  Jiave,  some  interest  in  or 
lien  upon  said  premises. 

Prays  for  a  partition  and  division  of  said  premises  accord- 
ing to  the  rights  and  interests  of  the  parties  in  severalty,  if 
same  can  he  done  without  manifest  prejudice  to  the  oicners 
thereof,  or  if  the  partition  can  not  he  made  loithout  such  man- 
ifest prejudice,  that  a  sale  therof  he  made  according  to  law, 
and  that  the  proceeds  of  such  sale  he  distrihuted  among  the 
parties  respectively  entitled  thereto? 

Chancery  summons,  {to  Cooh  county')  issiied,  dated  Oct.  S4-, 
1881,  to  all  said  defendants  returnable  3d  Monday  of  Nov., 
1881,  and  duly  served  upon  all  said  parties. ' 

'  Whitman  v.  Hencberry,    73  111.  conveniently  made,  by  a  sale  of  the 

109.  property:     2  Barb.  Ch.  Prac.  *262. 

2  The  law  contemplates  two  modes  ^  Very  frequently  connsel  desires  to 

of  proceeding  in  order  to  procure  a  know  the  manner  of  service  particu- 

divi.sicn  of  real  estate  held  in  joint  larly  where  persons  under  disability 

tenancy  or  in  common:  (1)  By  a  parti-  are  interested,  and  in  such  case  the 

tion  of  the  premises  without  sale  ;  abstract  at  this  point  should  disclose 

and  (2)  where  a  partition  can  not  be  such  method  by  a  copy  or  summary 
30 


4:66  ABSTRACTS   OF   TITLE. 

Answer  of  defendant  Edioard  C.  Walker  {and  rejylica- 
tion  thereto)  filed  Dec.  8,  1881. 

Defaidt  of  defendants,  Thomas  Cannon,  James  W.  New- 
house,  guardian  and  next  friend,  taken  and  entered  Dec.  8^ 
1881,  {chancery  record  ^,  fg.  198)  for  want  of  plea,  answer 
or  demurrer  to  hill,  and  Louis  Hunt  appointed  guardian  ad 
litem  for  said  minor  defendant,  Sarah  A.  Newhouse. 

Cause  referred  to  L.  J.  J.  Nissen,  Master  in  Chancery, 
Dec.  8,  1881,  to  talce  proofs,  etc. 

Ansioer  of  said  minor  defendant  l>y  her  guardian  ad 
litem,  filed  Dec.  8,  188 1. 

Master^s  report,  submitting  proofs  and  exhibits  filed  Feb. 
W,  1882. 

Said  master  reports  that  the  material  facts  averred  in  the 
bill  have  been  fully  proved,  and  said  complainant  is  entitled 
to  the  relief  frayed  for  in  said  bill. 

Decree  entered,  Feb.  20,  1882  {Chancery  Record  Ifi,  page 
W6). 

\IIere  should  follow  the  decree  or  every  material  part 
thereof}  ] 

Where  the  decree  is  interlocntorj  only,  the  subsequent  pro- 
ceedings, as  the  appointment  and  report  of  commissioners, 
offers  and  acce])tance  of  parties,  together  with  tlie  final  de- 
cree and  confirmation  should  follow  in  regular  order.  What 
has  been  given  will  serve  to  fully  illustrate  the  method  in 
M'hich  su^jsequent  steps  may  be  shown, 

§  20.  Specific  Performance.  Equity  will  enforce  specific 
performance  of  agreements  relating  to  lands ;^  compel  con- 
veyance of  land  purchased,^  either  by  the  vendor  or  his  heirs;* 

of  the  returns  of  the  officers.   Where  as    a   very  slight  omission  will  fre* 

all  the  parties  enter  an  appearance  quently  vitiate  the  return  and  pre- 

the  method  above  given  is  sufficient,  vent  jurisdiction  from  attaching. 

but  when  there  has  been  default,  it  ^  See    "Judgments   and  Decrees" 

is  essential  to  a  correct  opinion  that  for  a  precedent  of  a  decree. 

the  method  of  service  upon  the  non-  ^  Kerfoot  v.  Breckenridge,  87  111. 

appearing  parties  be  shown,  and  this  205. 

can  only  be  done  by  a  copy  of  the  ^  Marling  v.  Marling,  94  W.  Va. 

return.     Stating  that  defendant  was  79. 

*'  personally  served"  is  not  sufficient,  *  Bennett  v.  Waller,  23  111.  97. 


CHANCERY    RECORDS    AXD    PROCEEDINGS.  467 

or  where  specific  perforin  mice  can  not  be  enforced,  will  give 
other  adequate  relief.'  The  essential  conditions  of  such  con- 
tracts are:  That  the}'  be  made  by  competent  parties,  willingly 
entered  into;"  that  the  terms  are  certain  and  well  defined;* 
be  founded  uj)on  sufficient  consideration;*  and  the  party  seek- 
ing its  performance  must  fulfill  his  obligations  under  it.*  It 
must  further  be  lawful  iu  its  character,'  and  such  as  the  court 
can  enfurce/  As  this  matter  occurs  most  frequently,  in  con- 
nection with  title,  in  actions  growing  out  of  agreements  to 
deed,  it  is  advisable,  that,  in  case  performance  lias  been  decreed 
and  consummated,  a  very  full  synopsis  be  given  of  all  the  ma- 
terial parts  of  the  pleadings;  master's  report,  if  there  has 
been  a  reference  of  title;  and  of  the  final  decree.  If  per- 
formance has  been  denied,  and  the  contract  or  agreement 
is  of  record,  the  same,  together  with  a  brief  notice  of  the 
action,  may  be  shown  as  a  special  appendix;  if  the  contract  is 
not  of  record  and  only  appears  from  what  is  shown  in  theplead- 
ings  the  entire  matter  may  safely  be  disregarded.  In  addition 
to  actions  in  the  circuit  court,  when  any  deceased  person  was 
bound  by  a  contract  in  M'riting  to  convey  any  real  estate,  a 
specific  performance  by  the  personal  rejiresentatives  of  such 
deceased  person  may  be  decreed  in  the  probate  court,  in  all 
cases  where  the  deceased,  if  living,  might  l)e  compelled  to  exe- 
cute such  conveyance.  The  jurisdiction  in  this  event  is  ob- 
tained by  petition  setting  forth  the  jurisdictional  facts,  and  of 
notice  duly  given  in  accordance  with  the  statute  and  the  peti- 
tion, notice,  proof  of  service,  and  decree,  should  precede  or  sup- 
plement the  administrator's  or  executor's  deed  whenever  it  is 
shown  in  the  abstract.' 

^  Woodward  v.  Harris,   2    Barb.  Wis.   474;     Tshmoal  v.    Parker,    13 

439;  Oliver  v.  Croswell,  42  111.  41 ;  111.  324. 

2  Johnson  v.  Dod<?e,    17   111.  433;  «  McClurken    v.  Detrich,    33    111. 

Taylor  r.  Merrill,  55  111.  52;  349;     Hooker  r.  De  Palos,  28   Ohio 

8  Schmelingr  v.  Kriesel,   45    Wis.  St.  251. 

357;  Colson  v.  Thompson,  2  Wheat.  ^  ]\IcClellan  r.  Darrah.  50  111.  249. 

836;     Gigos  v.  Cochran,  54  Ind.  593.  '  By    statutory  direction  in   many 

*  Cheney  v.   Cook,   7    Wis.    413;  States  a  certified  copy  of  the  order  or 

Smith  V.  Wood,  12  Wis.  3S2.  decree  directing  the  execution  of  the 

'  N.  W.   Iron    Co.  v.   Mead,    21  conveyance,  is  required  to  be  record- 


468  ABSTRACTS    OF   TITLE. 

§  21,  Redemption,  Bills  to  redeem,  tliongli  formerly  of 
common  occurrence,  are  now  rarely  em])loyed,  from  the  fact 
that  the  fundamental  law  concerning  mortgages  has  been  radi- 
cally changed,  and  the  necessity  of  equitable  interference  to 
restore  the  mortgagor's  rights  no  longer  exists  save  in  a  few 
instances.  After  the  law  day  has  passed  the  status  of  the 
mortgagor's  title  is  substantially  as  good  as  it  was  before,  and 
until  foreclosed  by  legal  methods  the  right  to  redeem  by  sim- 
]~»Ie  paj-ment  is  unimpaired.  Such,  at  least,  is  the  recognized 
law  in  a  majority  of  the  American  States.  But  when  a  deed, 
though  in  fact  given  as  security  only,  is  absolute  on  its  face, 
and  purports  to  convey  an  absolute  estate  in  fee,  the  mort- 
gagor, to  assert  his  right  of  redemption  and  become  re-invested 
witli  his  former  title,  must  still  make  application  to  a  court 
of  equitj^  by  a  bill  to  redeem,  or  such  other  similar  remedy 
as  the  statute  has  provided.  In  like  manner,  if  a  mortgagee, 
having  entered  for  condition  broken,*  refuse  to  relinquish 
the  possession  of  the  estate  mortgaged,  afterpayment,  or  tender 
of  payment,  of  the  money  due  on  the  mortgage,  the  only  rem- 
edy of  the  mortgagor,  in  States  where  the  ancient  doctrine 
still  obtains,  in  order  to  regain  the  estate,  is  by  a  bill  to 
redeem.^  Ordinarily,  however,  this  latter  end  is  attained  by 
a  direct  proceeding  to  have  the  mortgage  canceled.  The  bill, 
in  some  form,  together  with  its  attendant  decree  will  occa- 
sionally occur,  particularly  in  case  of  equitable  mortgages, 
and  as  its  effect  upon  title  is  very  marked,  it  must  be  fully 
set  forth, 

§22,  Foreclosure.  Probably  no  class  of  legal  proceedings 
so  often  figures  in  examinations  of  title,  as  actions  brought  to 
foreclose  and  enforce  liens,  and  particularly  is  this  true  in  the 

ed  in  the  registry  of  deeds  of  the  contracting  party  himself  were  still 

county  in  which  the  land  is  situate,  living  and  then  executed  same:     R. 

and  such  certified  copy  is  made  evi-  S.  Wis.  Ch.  167;     Minn.  Gen.  Stat. 

dence  of  the  correctness  of  the  pro-  Ch.  58. 

ceedings,  and  of  the  authority  of  the  'This  is  still  permitted  in  a  few 

executor  or   administrator  to  make  States,  see  Chap.  XXII. 

the  conveyance,  while  the  conveyance  ^  Parsons  «?.  Wells,  17   Mass.  419; 

itself  is  made  effectual  to  pass  the  Shermanr.  Abbott,  18  Pick.  4  i8. 

estate  contracted,  as  fully  as  if  the 


CHANCERY    RECORDS    AND    PROCEEDINGS.  469 

matter  of  the  foreclosure  of  mortgages.  A  foreclosure  in  equity 
is  a  ]>roeeeding  by  which  the  mortgagor's  right  of  redem])tion 
in  the  mortgaged  premises  is  barred  or  closed  forever,  and 
occurs  when  the  mortgagor  has  forfeited  his  estate  by  non- 
payment of  the  monc}"  due  on  the  mortgage  at  the  time  ap- 
pointed, but  still  retains  the  equity  of  redemption.'  In  such 
case  the  mortgagee  may  call  ujion  the  mortgagor,  in  a  court 
of  equity,  to  redeem  his  estate  presently,  or,  in  default  thereof 
be  forever  closed  or  barred  from  any  right  of  redemption.  Two 
general  methods  of  foreclosure  are  recognized  in  equity,^  one, 
called  strict  foreclosure,  whereby  the  mortgagee  is  adjudged 
the  absolute  owner  of  the  property;  and  the  other  by  a 
sale  of  the  propert}',  under  the  direction,  and  by  an  officer  of 
the  court,  in  which  case  the  proceeds  are  applied  to  the  dis- 
charge of  incumbrances,  according  to  their  priority  and  the 
balance,  if  any,  paid  over  to  the  mortgagor.  Strict  foreclosure 
has  always  been  regarded  as  a  harsh  remedy  and  is  not  ])er- 
mitted  in  most  of  the  States,  nor  is  the  title  thus  acquired  as 
safe  as  when  made  by  the  ordinary  foreclosure  by  sale.  The 
title  derived  under  a  foreclosed  mortgage  is  evidenced  by 
the  mortgage  itself;  the  proceedings  and  decree  in  foreclosure; 
the  certificate  of  sale,  report,  and  confirmation;  and  finally  by 
the  selling  oflicer's  deed,  all  together  composing  one  transac- 
tion. Considerable  particuhirity  must  be  observed  in  the 
synopsis  of  the  proceedings,  especially  in  regard  to  ])arties, 
and  counsel  in  passing  title  should  see  that  all  persons  who 
might  legally  assert  any  rights  in  relation  to  the  mortgaged 
premises,  have  been  regularly  brought  in  and  properly  barred 
or  their  rights  adjusted,  and  this  will  include  not  only  the 
mortgagors,  but  subsequent  mortgagees,  judgment  creditors, 
lien  holders,  and  all  other  persons  possessing  legal  rights  or 
equities  accruing  subsequent  to  the  lien  asserted  by  the  mort- 
gage.' 

1 1  Bou.  Law  Diet.  599.    A  court  of  foreclosure  by  means  of  a  proceodinnf 

equity  will  never  decree  a  foreclosure  hy  scire  facias,  but  which,  from  its 

until  the  period  limited  for  payment  inadequate  nature,  issehloni  rosortid 

h;is  expired:  Harshaw  v.   McKesson,  to. 

6G  N.  C.  266.  Mlinson  r.   Adrian.   SC)    X.  C.  61; 

^  There  is  also  a  legal  method  of  Mabury  v.  Ruiz,  58  Cal,  11. 


470  ABSTRACTS    OF   TITLE. 

§  23.  Dower.  The  interest  wliich  a  widow  possesses  in  the 
lands  of  her  deceased  linsband  in  riiijht  of  dower,  may,  at 
common  law,  be  assigned  to  her  in  severalty  by  the  lieir, 
without  the  order  of  a  court  and  without  a  deed,  for  tlie 
assiijnment  in  such  case  is  not  regarded  as  a  conveyance  of 
title,^  but  only  the  ascertainment  of  an  interest  which  is  a 
continuation  of  the  estate  of  tlie  husband,  and  which  is  held 
of  him  by  appointment  of  law;^  the  only  effect  of  the  assign- 
ment being  to  distinguish  the  land  to  which  it  attaches  from 
the  rest  of  the  husband's  estate.  But  should  the  heir  neglect 
or  refuse,  within  a  reasonable  time  after  the  death  of  a  hus- 
band, to  lay  oif  and  assign  to  the  widow  such  portion  of  the 
premises  as  she  may  be  entitled  to  use  and  occupy,  or  when 
the  particular  part  can  not  be  agreed  upon,  or  when  the  right 
is  disputed,  recourse  may  be  had  to  equity  to  determine  the 
rights  and  apportion  the  interests  of  the  parties.  Where  the 
right  is  undisputed,  dower  may  be  assigned  by  the  probate 
court,  as  an  incident  to  the  settlement  of  the  husband's 
estate,  and  the  award  in  such  case  should  substantially 
appear  in  the  synopsis  of  probate  proceedings,  or  as  an  inde- 
pendent exhibit.  Where  the  right  is  disputed  the  probate 
court  ordinarily  has  no  jurisdiction,  while  in  many  States  if 
the  heir  or  other  person  shall  not,  within  some  specified  period 
after  the  deatli  of  the  husband,^  satisfactorily  set  over  and 
assign  to  the  surviving  wife,  dower  in  and  to  all  lands 
whereof  by  law  she  is  or  may  be  dowable,  such  surviving 
wife  may,  in  the  first  instance,  sue  for  and  recover  the  same 
by  petition  in  equity,  against  the  heir  or  any  other  person 
claiming  right  or  possession  of  said  estate.  In  either  case 
the  interposition  of  commissioners  is  contemplated,  and  the 
report  of  the  commissioners,  together  with  the  approval  of 
the  court,  are  necessary  parts  of  the  abstract  of  the  proceed- 
inijs.  Where  an  allowance  is  made  in  lieu  of  dower  a  state- 
ment  must  be  made  of  that  fact,  particularly  when  by  decree 

^  Conant  v.  Little,  1  Pick.  180.  equally  dowable  in  the  lands  of  the 

^  Farnsworth  v.  Cole,  42  Wis  405;  other,  these  remarks  will   apply  to 

4  Kent  Com.  62.  both  sexes. 
*  Where    husband  and    wife   are 


CHANCERY    EECORDS    AND    PROCEEDINGS.  471 

tlie  assessment  of  such  allowance   is  made  a  lien  upon  the 
land. 

§  24.  Divorce.  The  dissolution  of  the  marriage  contract, 
though  formerly  a  power  exercised  by  the  legislature,  is  now 
very  generally  relegated  to  courts  of  equity,  and,  as  a  rule, 
such  courts  have  the  exclusive  original  jurisdiction.  Until  de- 
cree lias  actually  been  made  the  legal  relations  of  the  parties 
continue  to  subsist,  even  wdicre  the  marriage  is  utterly  void 
for  pre-existent  causes,  and  such  decree,  to  be  effective,  must 
further  be  made  during  the  life-time  of  both  parties.'  At 
common  law,  a  divorce  was  only  granted  for  pre-existent 
cause,  and  had  the  effect  of  bastardizing  the  issue.  Under 
the  statute,  divorces  are  granted  for  causes  arising  subsequent 
as  well  as  prior  to  the  marriage,^  and  do  not  affect  the  legit- 
imacy of  the  children  of  the  marriage,  except,  perhaps,  when 
the  divorce  is  granted  on  the  grounds  of  a  prior  marriage.' 
Pending  the  determination  of  the  cause  the  husband  may  be 
enjoined  from  disposing  of  his  property  in  order  to  defeat  any 
allowance  of  alimony,*  but  such  injunction  is  never  made  per- 
petual on  granting  the  decree.*  The  allowance  of  alimony 
may,  however,  be  enforced  by  a  sale  of  the  husband's  real 
estate,  and  by  the  decree  the  payment  of  same  is  usually 
made  a  specific  lien  upon  his  property.  When  alimony  or 
maintenance  is  made  to  become  due  by  installments,  and 
a  sale  is  made  to  meet  such  installments,  the  title  will  pass 
subject  to  the  lien  of  installments  not  then  due  unless 
the  court  shall,  at  the  time,  direct  otherwise.*  When  ])rop- 
erty  is  held  by  one  party  which  equitably  belongs  to  the 
other,  the  court  may  compel  conveyance  thereof  to  be  made, 
and  sometimes,  in  case  of  a  community  of  interest  a  partition 

'Reeves'  Dom.  Rel.-204;  1  Black.  111.  136;  Keating  r.  Keating,  48  111. 

Com.  440.  242.      Instead     of  the    injvniction, 

2  Clark  V.  Lett,  11  Til.  105.  the  decree  makes  the  alimony  a  hen 

*  Consult    local    statutes  for   the  upon  his  land,  and  he  may  be  coiu- 
grounds  of  divorce.  pclled  to  secure  the  lien  further  by 

*  Vanzant  v.  Vanzant,  23  111.  536;  mortj,'afje. 

Gray  v.  Gray,  65  Ga.  193.  "  All   these  matters   are  the  sub- 

*  Errissmann    v.   Errissmann,    25      ject  of  expi'ess  statutory  regulation. 


472  ABSTRACTS    OF    TITLE. 

is  necessary.'  Lands  in  fee  may  be  decreed  in  satisfaction  of 
alimony,^  or  the  court  may  assi<^n  as  such  the  use  for  life  of 
part  of  the  husband's  estate.*  It  is  not  customary,  liowever,  to 
disturb  the  husband's  real  estate,  but  a  definite  money  allow- 
ance is  made  instead,  and,  with  the  exception  liereafter 
noted,  divorce  proceedini^s  are  seldom  shown  in  abstracts  of 
title  save  as  they  may  incumber  land  by  the  lien  for  alimony, 
and  then  only  in  brief  and  general  terms.  A  divorce  has 
another  important  effect  on  titles,  however,  considered  in  re- 
spect to  dower.  It  is  a  doctrine,  both  of  the  common  1,  w 
and  of  the  statute,  that  the  dissolution  of  the  marriage  rela- 
tion, ijpso  facto  restores  the  parties,  legally  as  well  as  socially, 
to  the  same  relative  position  they  occupied  prior  to  entering 
into  same.  One  of  the  incidents,  therefore,  is  loss  of  the 
dower  right  of  the  wife,  and  to  siiow  a  full  and  complete  ex- 
position of  title  an  appropriate  mention  of  a  divorce  seems 
necessary  in  all  cases  where  the  question  of  dower  would 
properly  arise.  This  may  be  accomplished  by  a  brief  refer- 
ence to  the  case  as  follows: 

Circuit  Courts  Cook  County. 
Albert  Callaway  |      Case  No.  10,057. 

vs.  >      Bill  for  divorce. 

Mary  A.  Gallaioay.       )      January  W,  1881,     Decree  of 

divorce  rendered.,  which  orders 
that  defendant    he.,  and  she  is,  forever  harred  of  and  from 
all  right  and  claim  of  doioer  in  and.  to  the  lands  and  tene- 
ments of  said  complainants 
Costs  paid. 

§  25.  The  Right  of  Eminent  Domain.  The  general  subject 
of  eminent  domain  has  been  alluded  to  in  a  former  part  of 
this  book,  but  maybe  advantageously  referred  to  at  this  place 
in  connection  with  its  pi'actical  application  to  the  alienation 
of  land.     The  right  of  eminent  domain  is  defined  to  be  the 

'Stewartson  v.  Stewartson,  15  111.  ^  Keating  v.  Keating,  48  111.  241; 

145.  JoUiff  V.  JolUff,  32  III.  527. 

2  Wheeler  v.  Wheeler,  18  III.  39. 


CHANCERY    EECORDS    AND    TROCEEDINGS.  473 

ultimate  right  of  the  sovereign  power  to  appropriate  not  only 
the  public  property,  but  the  private  proj^erty  of  all  persons 
within  the  territorial  sovereignty,  to  public  purposes,^  and 
though  the  exercise  of  the  right  usuall}''  affects  only  the  use  and 
enjoyment  of  the  land  and  not  the  fee,^  it  is,  in  cHect,  a  per- 
petual right  of  user  almost  equal  in  dignity  to  the  fee,  and  in 
some  States  it  contemplates  a  transfer  of  the  fee  itself  Tiiis 
right  is  variously  exercised  by  the  State,  both  in  its  own  be- 
half, as  for  the  acquisition  of"  land  for  State  institutions  or  im- 
provements, roads,  canals  and  other  public  woi'ks  of  a  strictly 
])ublic  character,  and  in  behalf  of  corporations  for  works  and 
improvements  of  a  quasi  public  character,  but  it  is  a  funda- 
mental principle  that  any  lands  of  the  subject,  for  whatever 
])urpose  required,  shall  not  be  taken  or  damaged  for  public 
use,  without  just  compensation.  "When  taken  under  this  right 
and  in  fee,  it  is  freed  from  all  contingent  interests,  liens  and 
equities,  including  inchoate  ]-ights  of  dower,  judgment  liens, 
etc.* 

§  26.  Proceedings  for  Condemnation  and  Assessment. 
Provision  is  made  in  every  State  for  the  condemnation  of 
and  compensation  to  be  paid  for  or  in  respect  of  the  property 
sought  to  be  appropriated  or  damaged,  when  no  agreement 
can  be  effected  by  the  parties  interested,  or  in  case  the  owner 
of  the  property  is  incapable  of  consenting,  or  his  name  or 
residence  is  unknown,  or  he  is  a  non-resident  of  the  State. 
The  general  procedure  is  very  uniform,  though  the  instru- 
mentalities nsed  are  not  alike  in  all  the  States.  The  proceed- 
ings generally  contemplate  an  investigation  by  a  jury,  and  an 
assessment  and  award,  which,  when  regularly  accom))lished 
and  confirmed,  lias  the  effect  of  divesting  the  title  of  the  former 
owner  and  clothing  the  corjioration  with  such  title  as  the  law 

'  Vatters  Law  of  Nations,  b.  1,  ch.  People  v.  Mauran,  5  Den.  380;  Hcy- 

20;  Charles  River  Bridge  v.  Warren  ward  v.  Mayor  of  N.Y.,  3  Seld.  214; 

Bridge,  11  Pet.  641.  Troy  v.  R.  K.  Co.,  42  Vt.  265;  Chal- 

Mi.   R.  V.  Burkett,  42    Ala.   83;  lis  c.  R.  R.  Co.,  16  Kan.  117. 

Hatch?'.    R.  R.,   18  Ohio,  92;  Mor-  *  Moore  r.  Aldermen,  etc.,  4  Sand, 

ris  V.  Scha,llsville,  6  Bush  (Ky.),  671.  456,  affirmed,  4  Sel.  110;    Watson  v. 

"NicoUi'.  R.  R.  Co.,  2  Kern.  121;  R.  R.,  47  N.  Y.  157. 


471  ABSTRACTS    OF   TITLE. 

imports.  This  is  effected  bja]:)etition  addressed  to  a  court  of 
competent  jurisdiction,  or  to  a  judge  thereof  either  in  term 
time  or  vacation,  setting  fortli,  by  reference,  the  authority  in 
the  premises,  of  the  party  seeking  to  take  or  damage  tlie 
property  so  required,  the  purpose  for  which  said  property  is 
sought  to  be  taken  or  damaged,  a  description  of  tlie  property, 
the  names  of  all  persons  interested  therein  as  appearing  of 
record,  if  known,  or  if  not  known  stating  the  fact,  and  if  the 
proceedings  seek  to  affect  the  property  of  persons  under  guard- 
iansliip  the  guardians,  or  conservators  of  persons  having  con- 
servators, must  also  be  made  parties  defendant,  and  if  married 
women  their  husbands  must  be  made  parties.  Persons  in- 
terested whose  names  are  unknown  may  be  made  parties  by 
the  description  of  the  unknown  owners;  the  latter  fact  being 
presented  by  affidavit.  Notice  is  given  to  the  parties  inter- 
ested by  personal  or  substituted  service,  and  a  hearing  is  had 
either  before  tlie  judge  to  whom  the  petition  was  addressed,  or 
commissioners  appointed  by  him,  and  when  heard  by  the  judge 
a  jury  may  be  impaneled  to  ascertain  the  damages.  The  rec- 
ord in  the  matter  should  substantially  appear  in  the  abstract 
and  must  be  sufficiently  full  to  disclose  all  jurisdictional  facts 
and  that  the  power  has  been  exercised  according  to  the  direc- 
tion of  law.  When  the  proceedings  are  conducted  by  com- 
missioners a  report  is  made  to  the  court  granting  the  author- 
ity, and  this  report  substantially  embodies  all  that  is  necessary 
to  show  complete  divesture,  while  the  court  roll,  when  such 
proceedings  are  conducted  primarily  before  a  court,  or  on  ap- 
peal, will  also  serve  the  same  end. 

§  27.  Construction  of  "Wills.  Tlie  validity  of  a  will  may 
be  contested  in  equity  as  well  as  before  the  probate  court,* 
yet  this  is  seldom  done,  except  on  appeal,  and  the  aid  of  a 
court  of  equity  is  usually-invoked  only  to  pass  upon  and  con- 
strue indefinite  and  uncertain  passages,  or  to  direct  the  exec- 
utor in  the  execution  of  indeterminate  or  insufficiently  ex- 
pressed trusts.  Where  any  doubt  arises  as  to  the  proper  con- 
struction of  a  will,  or  as  to  the  rights  of  parties  thereunder, 
resort  is  usuallj^  had  to  a  court  of  equity  for  a  construction 

1  Duncan  v.  Duncan,  23  111.  264;  Flinn  r.  Owen,  68  111.  111. 


CIIxiNCERY    EECOKDS    AND    PROCEEDINGS.  475 

and  decree  for  distribution,  and  the  decree  so  made,  so  far  as 
as  it  relates  to  land,  either  directly  or  by  just  implication,  be- 
comes an  essential  muniment  title,  equal  in  importance  to 
the  will  itself,  and  of  which,  as  an  expression  of  the  testator's 
intention,  it  forms  an  integral  part. 


CHAPTER  XXIX. 


TAXES    AND    TAX    TITLES. 


1. 

Definition — Nature  of 

taxing 

chaser. 

power. 

§10. 

Rights  of  purchasers. 

2. 

Subjects  of  taxation. 

11. 

Redemption. 

3. 

Lien  of  taxes. 

12. 

Certificate  of  sale. 

4. 

Tax  titles. 

IB. 

Tax  deeds. 

5. 

Nature  of  tax  titles. 

14. 

Continu  d. 

6. 

Proceedings   incident  to  taxa- 

15. 

Formal  parts. 

tion. 

16. 

Effect  of  deed  as  evidence. 

7. 

Sale  for  non-payment. 

17. 

Tax  deed — Possession — Limi- 

8. 

Forfeitures. 

tation. 

9. 

Tax  sales — Tax  payer 

as  pur- 

18. 

Tax  abstracts. 

§   1.      Definition — Nature  and  Scope  of   the  Taxing   Power. 

By  the  concurrent  opinion  ot  lawyers,  judges,  lexicographers, 
and  political  economists,  as  well  as  by  the  general  and  popu- 
lar understanding,  taxes  are  burdens  or  charges  imposed  by 
the  legislative  pov»^er,  upon  persons  or  property,  to  raise 
money  for  public  purposes  or  to  accomplish  some  govern- 
mental end.'  This  power  is  vested  wholly  in  the  legislature, 
though  municipalities  may  exercise  same  by  a  special  delega- 
tion of  authority,  and  is  unrestricted  except  w^hen  it  is  op- 
posed to  some  provision  of  the  federal  or  state  constitution. ^ 
It  extends  to  every  trade  or  occupation,  to  every  object  of  in- 
dustry, use,  or  enjoyment,  and  to  every  species  of  possession.^ 
The  right  of  taxation  has  for  its  foundation  the  principle  that 
the  citizen  shall  contribute  to  the  support  of  tiie  government 

»  Hanson  v.  Vernon,   27  Iowa,  28  ;       133. 
Mitchell  V.  Williams,    27   Ind.    62;  ^  Curry  v.   Spencer,  14  Reporter, 

Blackw.  Tax  Tit.  1.  527;     DePauw  v.  New  Albany,    22 

2  People  V.  Marshall,  1  Gilm.  (111.)       Ind.  204  ;   Anderson  v.  Kerns  Draiu- 
672;  Wider  v.  East  St.  Louis,  55  111.      ing  Co.,  14  Ind.  199. 

(476) 


TAXES   AND    TxVX   TITLES-  477 

which  protects  his  pci-son  and  property,  in  just  proportion  to 
the  value  of  the  ])ropertv  protected;^  and  equality,  so  far  as  is 
practicable  is  its  distinguishin<ij  characteristic.'^  While  it  is 
scarcely  possible  to  attain  absolute  equality  in  all  cases,  or 
benefits  commensurate  with  the  burden  of  taxes  imposed,  yet 
the  principle  upon  which  the  ap])roximation  to  equality  is  to 
be  maintained  must  be  preserved  inviolate  in  this,  that  all 
property  subject  to  taxation  shall  be  uniformly  assessed,  ac- 
cording to  value  ;  a  rule  applicable  to  all  taxation,  whether 
for  general,  local  or  special  purposes.'  The  legislature,  as  we 
have  seen,  is  the  sole  source  and  repository  of  the  taxing 
power;  on  the  other  hand,  the  counties  and  other  municipal 
divisions  are  mere  auxiliaries  of  the  government,  established 
simply  for  the  more  eifective  administration  of  justice,  and 
the  power  of  taxation,  as  confided  to  them,  is  a  delegated 
trust,  and  is  to  be  strictly  construed.  They  act,  not  by  virtue 
of  inherent  power,  but  as  mere  agencies  of  the  State,*  the 
whole  theory  of  our  system  of  taxation  being  based  upon  the 
idea,  that  it  is  prepared  by  the  representatives  of  the  people, 
upon  due  deliberation  and  reflection,  and  when  thus  prepared 
for  State  purposes,  it  may  be  safely  applied  by  the  counties 
and  other  local  agencies  of  the  commonwealth. 

§  2.  Subjects  of  Taxation.  Primarily  all  property  is  sub- 
ject to  a  just  ])r()portion  of  the  burdens  of  taxation  in  return 
for  the  pi'otection  which  the  State  affords,  but  the  legislature 
may  grant  an  exemption  to  certain  classes,  and  such  grant 
may  be  in  the  nature  of  a  contract  and  inviolable.  But  such 
grant  must  be  expressed  in  clear  and  unmistakable  language, 

»  Diinleith  v.  Eeynolds,  53  Ills.  45  ;  Weeks  v.  MilwaiikcQ.    10  ^Yis.  242  ; 

In  re  Van  Antwerp,  56  N.  Y.  265.  People  v.  Bradley,  39   111.    130  ;  Ot- 

2  Sherlock  ».  Villag'e  of  ^Yinnetka,  tawa  v.  Spencer.  40  III.   211;    At- 

60   111.  530;  Holbrook  «'.  Dickinson,  torney  General  v.  Plankroad  Co.,   11 

46  III.  285  ;  Weeks  v.  Mihvankee,  10  Wis.  35;  Scens  v.   Racine,  10  Wis. 

Wis.  242;  Attorney  General  v.  Plank-  271 . 

road  Co.,  11  Wis.  35.  *  R.  R.  Co.  v.  Wa.shington  County, 

8  Peay  V.  Little  Rock,  32  Ark.  31;  30  Gratt  (Va.).  471;  U.  S.  v.  New 

Chicago  V.  Larncd,  34  111.  253  ;   Mc-  Orleans,  98  U.  S.  (8  Otto)  381. 
Cormack    v.    Patchin,  53  Mo.    33; 


478  ABSTIIACTS   OF    TITLE. 

and  can  not  be  aided  by  presumption  or  inference/  while  all 
language  creating  an  exemption  is  to  be  strictly  construed.^ 

§  3.  Lien  of  Taxes.  Tlie  lien  for  taxes  attaches  to  all  land 
subject  to  taxation,  annually,  upon  some  day  stated,  the  time 
being  different  in  nearly  every  State,  and  continues  until  the 
tax  is  paid/  Where,  for  instance,  the  lien  attaches  on  the 
first  day  of  May,  and  property  is  sold  subsequent  to  that  date, 
it  is  incumbered  by  the  lien  and  unless  a  special  exception  is 
made  in  the  deed  the  vendor  is  liable  upon  his  covenants  for 
the  payment  of  the  tax.  It  is  also  a  familiar  statutory  pro- 
vision that  taxes  assessed  on  personal  property  of  the  same 
owner  become  a  lien  on  his  real  estate.* 

§  4.  Tax  Titles.  A  tax  title  is  a  purely  technical,  as  con- 
tradistinguished from  a  meritorious  title,  and  depends  for  its 
validity  upon  a  strict  compliance  with  all  the  requirements 
of  law.^  No  presumption  can  be  raised  to  cure  radical  defects 
in  the  proceedings,  and  the  proof  of  regularity  devolves  on  the 
person  asserting  the  title.®  If  the  land  claimed  under 
such  a  title  was  subject  to  taxation,  and  the  proceedings  under 
the  law  have  been  regular,  and  the  owner  has  failed  to  re- 
deem within  the  time  limited  by  law,  then  the  whole  legal 
and  equitable  estate  is  vested  in  the  purchaser  and  a  new  and 
perfect  title  is  established.^     This  results  from  the  paramount 

J  Minot  V.  R.  R.  Co..  18  Wall.  206:  ^  Atkins  v.  Hinman,  2  Gilm.  (111.) 

Butler's  Appeal,  73 Pa.  St.  448;  R.  R.  437;  Smith  v.  Messer,  17  N.  H.  420; 

Co.  r.  Maguire,  49  Mo.  490.  Duiilap  v.  Gallatin  Co.,   15  111.   7; 

2 Commissioners  v.  Brackenridge,  Jarvis  v.  Peck,  19  Wis.  74;  Cram  v. 

12  Kan.  114;  Manf.  Co.  v.  East  Sag-  Cotting,  22  Iowa,  411.     The  follow- 

inaw,     19     Mich.     2')9;     M  thodist  ing  principles,  or  rules,  for  testing 

Church  V.  Chicago,  26  111.  482.  the  validity  of  tax  titles,  appear  to 

^Binkert   v.  Wabash  Ey.  Co.,  98  be  fairly  deducible  from  the  reported 

III.  205.  cases:  (1),  Where  the  statute  under 

*,Union  Trust  Co.  v.  Weber,  96  111.  which  the  sale  is   made,  directs  a 

346.  thing  to  be  done,  or  prescribes  the 

^  Altes   V.    Hinckler,  36  III.  2G5;  form,  time,  and    manner  of  doing 

Whitmorj  v.  Earned,  10  Reporter,  anything,  such  thing  must  be  done, 

631;  Charles  v.  Waugh,  35  111.  315;  and  in  the  form,  time  and  manner 

Hewes  v.  Reis,  40  Cat.  225;  Rivers  prescribed,  or  the  title  is  invalid; 

V.  Thompson,  43  Ala.  633.  and  in  this  respect  the  statute  must 

®  Oliver  v.  Robinson,  58  Ala.  46.  be  strictly,  if  not  literally,  complied 


TAXES    AND    TAX   TITLES.  479 

autlioritj  of  the  State  to  levy  the  tax  and  coerce  its  payment 
by  subjecting  the  property  to  sale,  yet  owing  to  the  com- 
plexity of  the  procedure  employed,  and  the  careless,  bungling 
or  ignorant  manner  in  which  it  is  used,  as  well  as  tlie  grave 
questions  which  may  arise  even  on  perfect  service,  a  tax  title 
is  regarded  as  among  the  poorest  evidences  of  the  ownership 
of  land  and  is  always  taken  with  suspicion  and  viewed  with 
jealousy.  Though  the  end  to  be  attained  by  the  sale  of  the 
land,  to  wit,  the  satisfaction  of  the  levy,  is  the  same  in  every 
State,  yet  no  two  States  seem  to  pursue  exactly  the  same 
methods  in  arriving  at  this  end,  but  whatever  be  the  methods 
employed,  there  must  at  least  be  a  valid  judgment  or  cor- 
responding feature;  a  valid  precept  authorizing  the  sheriff, 
auditor,  or  other  officer  to  make  the  sale;  and  a  proper  con- 
veyance of  the  land  from  such  officer  or  other  authorized 
person.  These  are  essential  to  the  prima  facie  vaVidiiy  of 
the  title,  and  none  of  them  can  be  dispensed  with.'  The 
basis  of  tlie  title  is,  of  course,  a  legal  tax,  and  no  title  passes 
by  a  deed  when  the  whole  or  any  2:)art  of  the  tax  on  which  it 
was  founded  was  illegal.^  A  sale  of  land  for  taxes  frees  it  in 
the  hands  of  the  purcliaser  from  all  liens  or  liabilities  for  taxes 
of  previous  years ;^  divests  all  prior  liens  and  incumbrances;* 
bars  the  inchoate  right  of  dower  ;^  and  vests  in  such  purchaser 
a  new  original,  and  impeachable  title  in  fee  simple.®  Such,  at 
least,  is  the  accepted  doctrine  in  a  majority  of  the  States, 
though  there  are  some  in  which  it  may  not  prevail.'' 

with;  (2),  But  in  determining  what  ^  Bowman  t.  Thompson,  HG  Towa, 

is  required  to  be  done,  the  statute  505;  Preston  r.  Van  Gordor,  ol  Iowa, 

must  receive  a  reasonable  construe-  250;  Knox  v.  Lcidgen,  23  Wis.  292. 

tion;  and  where  no  particular  form  *  Dunlap  v.  Gallatin  Co.,  15111.  7; 

or  manner  of  doing  a  thing  is  point-  Cram  v.  Cotting,  22  Iowa,  411. 

ed  out,  any  mode  which  effects  the  ''  Jones  v.  Devore,  8  Ohio  St.  430. 

object  with  reasonable  certainty  is  Local  statutes  may  modify  or  change 

sufficient:  Hall,  J.,  in  Chandler   v.  the  doctrine  stated  in  the  tfxt. 

Spear,  22  Vt.  388.  «  Turner  v.   Smith,  14  Wall.  5.53; 

*  Holbrook  v.   Dickinson,   46   111.  Osterberg  v.    Union     Trust   Co.,    9 

285.  Chi.   L«>g.  News.   156;    SehaefTer  r, 

2  Dogan  V.  Griffin,  51   Miss.  782;  People,  60  111.  179. 

McLaughlm   v.   Thompson,    55   111.  ^  The  statute  usually  provides  for 

249.  a  fee  simple.      It  is  held  in  several 


4S0  ABSTKACTS   OF   TITLE. 

§  5,  Nature  of  Tax  Titles — Dependent  or  Independent. 
A  tax  title,  though  bearing  some  resemblance  to  titles  de- 
rived under  judicial  and  execution  sales,  differs  in  this,  that 
the  latter  are  strictly  derivative  titles,  and  dependent  not 
OTily  on  the  legality  of  the  procedure  of  transfer  but  upon 
the  acts  of  former  owners.  A  tax  title,  on  the  contrary,  from 
its  very  nature,  has  nothing  to  do  with  the  previous  chain  of 
title,  nor  does  it,  in  any  way,  connect  itself  with  it.  The  per- 
son asserting  it  need  go  no  further  than  his  tax  deed,  and  the 
former  title  can  neither  assist  nor  prejudice  him.  The  sale 
operates  upon  the  land  and  not  upon  the  title,  and  it  matters 
not  how  many  different  interests  may  have  been  connected 
with  the  title,  if  it  has  been  regularly  sold,  the  property,  ac- 
companied by  the  legal  title,  goes  to  the  purchaser.  No  cove- 
nant running  with  the  land,  nor  warranty,  or  other  incident  to 
the  title,  as  a  title,  passes  to  the  purchaser,  but  he  takes  it  by 
a  new,  independent  and  paramount  grant,  which  extinguishes 
the  old  title  and  all  the  equities  dependent  upon  it.*  The 
statute  usually  pronounces  the  new  title  thus  acquired  a  fee, 
but  this  would  legally  follow,  even  though  the  statute  were 
silent,  where  no  other  estate  is  reserved  in  the  deed.  It  must 
be  understood,  however,  that  the  clause  of  the  statute  which 
provides  that  a  conveyance  resulting  from  a  sale  shall  vest  in 
the  o-rantee  an  "  absolute  estate  in  fee  simple,"  does  not  mean 
that  such  estate  shall  vest  in  the  grantee  notwithstanding  the 
fact  that  the  law  has  not  been  complied  with  in  making  the 
sale;  but  refers  merely  to  the  quantity  of  the  estate  conveyed 
as  distinguished  from  a  lesser  estate.^ 

§  6.  Proceedings  Incident  to  Taxation.  Where  a  statute 
requires  a  series  of  acts  to  be  performed  before  the  owners  of 

States,  however,  that  the  grantee  of  ^  Steeple  v.  Downing-,  60  Tnd.  478. 

a  tax  deed   takes  only  the  title  and  As  the  statute  provides  the  title  to 

estate  of  the  former  owner.       See  be  passed,  it  also,  as  a  rule,  states 

Sheafe  v.  Wait,  30  Vfc.  735.  how  that  title  thall  be  given  in  re- 

1  Neiswanger  v.  Gwynne,  13  Ohio,  gard  to  prior  liens  and  incumbances, 

74,  do.  15  Ohio,  367;  Rossw.  Barland,  and  sometimes  makes  the  sale  sub- 

1    Pet.    664.     See    Blackw.  on  Tax  ject  thereto.     Consult  local  statutes 

Titles  for  a  very  elaborate  discus-  for  the  effect  of  tax  deeds  and  the 

sion,  p.  *535  et  seq.  estate' conveyed. 


TAXES    AND    TAX    TITLES.  481 

property  are  properly  chargeable  with  the  tax,  such  acts  are 
conditions  precedent  to  the  exercise  of  the  power,  and  all  the 
requirements  of  the  statute  must  be  complied  with  or  the  tax 
will  be  invalid.^  "I'liese  proceedings  relate  to  the  valuation, 
assessment,  listing,  returns,  etc.,  and  do  not,  as  a  rule,  prop- 
erly come  within  the  sco])e  of  the  examiner's  duties.  They 
are  not  usually  shown  in  the  abstract,  unless  there  has  been  a 
special  direction,  and  when  required  are  usually  made  the 
subject  of  a  separate  and  special  examination.  When  a  tax 
deed  is  relied  upon  as  the  foundation  of  title,  all  the  antece- 
dent steps  become  material,  and  must  be  shown  in  full,  but 
this  is  the  only  instance  in  which  it  is  done.  Mere  irregu- 
larities, not  going  to  the  groundwork  of  the  tax,  do  not  vitiate 
such  proceedings,''  and  are  cured  by  special  statutes  of  limita- 
tion which  exist  in  all  the  States.'  The  subject  is  too  vast 
to  open,  even  in  a  general  way,  and  the  reader  must  be  referred 
to  technical  works  on  the  subject. 

§  7.  Sale  for  Non-payment.  Taxation  is  regulated  by 
statute,  but  the  right  is  inherent  in  the  government,  and  while 
summary  remedies  are  given  by  law,  yet  taxes  when  assessed 
become  a  personal  debt,  to  be  collected  by  any  of  the  legal 
methods  incident  to  same,  should  the  government  choose  to 
resort  to  such  a  remedy.*  The  methods  employed  are  too 
various  to  attempt  special  mention,  every  State  providing  a 
special  procedure  for  this  purpose,  and  the  subject  can  only 
be  treated  generally.  A  tax  is  not  an  ordinary  debt,  however; 
it  takes  precedence  of  all  other  demands,  and  is  a  charge  upon 
the  ])ropert3%  without  reference  to  the  matter  of  ownership. 
It  grows  out  of  the  perpetual  lien  which  the  State,  by  virtue 
of  its  sovereignty,  has  upon  all  taxable  lands  within  its  limits, 
and  the  property  may  be  seized  and  sold,  although  there  may 

iHewesv.  Reis,  40  Cal.  225;  Riv-  People,  79  lil.  r)97. 

ers  r.  Thompson,  43  Ala.   633;  Ab-  *  See  Thomas  r.  Stickle,  32  Iowa,  71. 

bott  V.  Doling,  49  Mo.  302.  *  Mayor  of  Jonesboro  r.  McKee,  2 

^R.  R.  Co.  V.  Morris,  7  Kan.  210;  Yer^.  (Tenn.)   167;  Dnnlap   r.  Gal- 
Greene  V.  Lunt,  58  Me.  518;  Parker  latin  Co.,    15   111.  7;   Biukort  r.  Hy. 
V.  Sexton,  29  Iowa,  421;  Thatcher  v.  Co.,  98  111.  205. 
31 


482  ABSTRACTS    OF   TITLE. 

be  prior  liens  or  incumbrances  upon  it,  and  payment  enforced 
to  the  exclusion  of  all  other  creditors.'  AVhatcver  be  the 
metliods  employed,  the  proceeding's  are  summary  in  their 
nature  and  the  requirements  of  law  must  be  strictly  pursued 
or  the  whole  transaction  will  be  void.^  When  special  pro- 
ceedings are  authorized  by  statute,  by  which  the  estate  of  one 
man  may  be  divested  and  transferred  to  another,  the  owner 
has  a  right  to  insist  upon  a  strict  performance  of  all  the  ma- 
terial requirements  of  the  statute,  especially  those  designed 
for  his  security,  and  the  non-observance  of  which  may  operate 
to  his  prejudice/  It  is  not  the  policy  of  the  law  to  deprive 
the  citizen  of  his  property  by  sales  made  on  account  of  the 
government  througli  its  officers,  who  have  no  interest  in  the 
matter,  without  putting  him  wholly  in  fault  in  not  complying 
with  his  obligations.*  A  synopsis  of  the  special  proceedings 
culminating  in  the  sale  is  of  the  highest  importance  whenever 
the  sale  is  relied  upon  as  the  foundation  of  title,  but  in  ordinary 
examinations  tax  sales  are  shown  rather  in  the  nature  of  in- 
cumbrances on  the  title  or  charges  npon  the  land,  and  it  is 
customary  to  show  only  the  fact,  leaving  the  question  of  va- 
lidity to  be  decided  by  other  and  special  searches.  For  this 
purpose  tax  sales,  when  still  subject  to  redemption  or  not  con- 
summated by  deed,  are  shown  after  the  chain  and  under  a 
classified  head,  the  abstract  consisting  only  of  a  brief  mention 
of  the  date  of  sale  and  tax  for  which  the  sale  is  made,  with 
reference  to  the  official  record;  a  brief  description  of  tlie 
premises  sold;  and  the  name  of  the  person  to  whom  the  cer- 
tificate issued.  Forfeitures  to  the  State  are  treated  the  same 
as  tax  sales.     The  following  will  indicate  the  method: 

^  Reinbart  v.    Schuyler,    2  Gilm.  Holbrook  v.  Dickinson,  46  111.  285. 

(111.)  473;  Dunlap  I'.  Gallatin  Co.,  15  *  Rivers    v.  Thompson,   43     Ala. 

111.  7.  633.     The  lien  of  taxes  is  purely  legal 

2  Charles  v.  Waugh,  85  111.  315;  in  its  character,  the  creature  of  the 
Gaboon  v.  Coe,  57  N.  H.  556;  Clarke  statute,  not  arising  upon  contract, 
V.  Rowan,  53  Ala.  401;  People  v.  and  can  be  enforced  in  the  mode  pro- 
Biggins,  96  111.  481;  Abbott  v.  Dol-  vided  by  the  law  of  its  creation,  and 
ing,  49  Mo.  302.  in  no  other  manner:  People  v.  Big- 

3  Marsh  v.  Chestnut,  14  111.  223;  gins,  96  111.  481. 


TAXES    AND    TAX    TITLES.  483 

Tax  Sales. 


Sale  comraencing  Sept.  13,  ISSO,  for    special    assessments 
of  the  City  of  Chicago. 

Record  37.,  page  68. 

Lot  5  in  East  Jialf  of  Bloch  ^^,  Canal  Trustees''  Sub- 
division of  West  half,  and  West  half  of  North  East 
quarter  of  Section  17,  Toton  39  North,  Range  H, 
East.  Sold  Oct.  15,  1880.  {Warrant  No.  4,382,  for 
macadamizing,  etc.,  W.  Jackson  Street)  to  Asahel 
Gage  for  %8.io). 
Sale  Gommenchig  Aug.  2,  1875,  for  State  and  County  taxes 
of  187 J^. 

Record  '22,  page  201. 

Lots  13  and  lip  in  Bloch  10,  of  RochwelVs  Addition 
to  BrocMon.  Sold  Sept.  25,  1875,  for  State  and  County 
taxes,  187 4,  to  Asahel  Gage,  for  %5 1.95. 

"Where  there  are  forfeitures  as  well  as  sales  these  are  shown 
in  much  the  same  manner. 

§  8.  Forfeitures.  The  class  of  forfeitures,  to  which  this 
section  alludes,  is  based  upon  the  principle,  "  that  every 
owner  of  lands  holds  his  estate  upon  the  implied  condition 
that  he  will  furnish  a  list  of  his  taxable  estate,  and  promptly 
pay  his  share  of  the  common  burdens  assessed  against  the 
entire  comtnunity;  and  if  he  omits  to  comply  with  the  condi- 
tion, and  his  estate  is  offered  at  public  vendue,  and  no  pur- 
chaser can  be  found  for  it,  the  title  is  transferred  from  the 
owner  to  the  State,  the  latter  being  always  ready  to  bid  for 
the  land,  when  no  other  bidder  appears.'"  The  term  "  forfeit'' 
is  not  always  used,  but  the  effect  in  every  State,  where  the 
])roperty  passes  to  the  State  in  default  of  purchasers,  is  a  for- 
feiture. A  forfeiture  operates  to  divest  the  title  of  the  origi- 
nal owner,  though  ample  time  is  always  allowed  for  redemp- 
tion, and  purchasers  of  forfeited  lands,  whore  the  law  has  been 
strictly  complied  with,  will  acquire  a  valid  title  from  the 
State. 

^Blackw.  Tax  Tit.  *4G0;  See  Clcry  p.  Hinman,   11  111.  -130. 


4.84  ABSTRACTS    OF   TITLE. 

Forfeitures. 


Sale  commencing   Sept.   13,  1880,  for  State   and   County 
taxes  of  1879. 

Record  23,  page  W5. 

Lot  5,  of  Block  10,  in  Williams^  Suhdivlsion  of  the 
North  East  quarter  of  Section  16,  Town  23  North, 
Range  lip,  East,  was  forfeited  to  the  State  of  Illinois, 
Oct.  15,  1880,  for  the  non-payment  of  State  and 
County  taxes  of  1870.     Amoimt,  $55.00. 

§  9.  Tax  Sales — Tax  Payer  as  Purchaser.  A  very  erro- 
neous opinion  has  stained  currency  in  many  localities  that  a 
purchase  by  one  owning  or  interested  in,  tlie  land  sold  for 
taxes,  strengthens  the  title  previously  acquired,  and  hence  it 
is  not  uncommon  to  find  tax  deeds  to  persons  already  pos- 
sessing equities  in  the  property.  Such  deeds,  however,  are 
absolute  nullities  for  it  is  a  proposition  beyond  dispute,  that 
one  whose  duty  it  is  to  pay  a  tax  can  not  be  a  purchaser  of 
property  offered  for  sale  for  the  purpose  of  collecting  it.' 
The  payment  of  the  money,  in  such  case,  will  be  regarded  as 
a  payment  of  the  tax  and  not  as  a  purchase  of  the  property. '"^ 
^N'or  does  this  principle  apply  only  where  there  is  a  direct 
leo-al  obligation.  The  party  against  whom  a  tax  is  assessed 
is  directly  liable  for  the  tax,  as  is  also  a  purchaser^  or  lessee,* 
who  has  contracted  to  pay  same,  and  in  these  cases,  where 
there  is  a  direct  legal  obligation,  there  can  be  no  question 
about  the  duty.  But  other  parties  may  acquire  an  interest  in 
real  estate  who  are  not  directly  responsible  for  the  taxes,  and 
who  enter  into  contract  in  respect  to  them,  yet  may  be  so 
situated  that  it  is  their  duty  to  pay  them.  For  instance,  a 
purchaser  of  the  propert}^  or  of  the  equity  of  redemption  sub- 
ject to  a  tax  lien;  he  may  be  compelled  to  pay  the  taxes  in 

1  Douglas  r.  Dan.o'erfiekl,  10  Ohio,  ^BnUj  v.  Doolittle,   24  111.   577; 

152;  Busch  V.  Huston,  755  111.  343;  Ballarae  v.  Forsythe,  13  How.  (U. 

Barton  v.  Moss.  32  111.  50;  Cooley  on  S.)  18;  Glancy  v.  Elliott,  14  111.  456. 

Taxation,  346;  Blackw.  on  Tax  Tit.  ^  Fitzgerald  v.  Spain,  30  Ark.  334. 

400.  *  Cooley  on  Taxation,  345. 


TAXES    AND    TAX    TITLES.  485 

order  to  protect  Lis  own  title.  Suchaparty  can  not  ordinarily 
be  a  purchaser  of  a  tax  title.  So,  too,  a  raortf^agee  is  under 
no  legal  obligation  to  pay  the  taxes,  and  yet  he  may  be  com- 
pelled to  pay  them  in  ortler  to  protect  his  mortgage. 
Although  there  may  be  cases  which  hold  that  under  certain 
circumstances  he  may  purchase  a  tax  title,  yet  the  general 
rule  is  that  he  can  not;'  and  for  the  reason  that  it  is  not  neces- 
sary for  him  to  do  so.  lie  may  pay  the  tax  and  the  amount 
paid  will  be  added  to  his  debt,  and  he  will  hold  the  whole 
pro])erty  as  security  therefor.  In  such  a  case  it  is  unneces- 
sary to  complicate  the  legal  title  with  a  tax  deed,  and  the 
law  will  not  allow  it  to  be  done.  Nor  does  it  v^aiy  the  case 
i)i  principle  if  the  person  paying  the  tax  owns  less  than  the 
whole  equity.  Whether  his  interest  be  worth  much  or  little, 
whether  he  owns  the  whole  or  a  part,  can  make  no  ditfercnce. 
In  either  case  if  his  interest  is  worth  protecting  he  will  ])ay 
the  tax,  and  in  neither  case  can  he  purchase  a  tax  title.  All 
such  persons  are  not  capable  of  purchasing  at  a  tax  sale  and 
deeds  to  them  convey  no  title.'' 

§  10.  Rights  of  Purchasers.  A  sale  for  taxes  is  not  sub- 
ject to  the  rule  that  one  who  purchases  during  the  pendency 
of  a  suit  is  held  bound  by  the  decree  that  may  be  made,'  for 
the  lis  pendens  only  relates  to  and  affects  voluntary  aliena- 
tions by  the  defendant  pending  the  action.  It  has  nothing 
to  do  with  parties  asserting  rights  independent  of  and  adverse 
to  that  of  the  defendant,  and  where  one  acquires  title  under  a 
sale  for  taxes  he  is  not  bound  b}'  the  foreclosure  of  a  mortgage 
given  by  a  former  owner  of  the  land,  and  his  title  will  prevail 
against  that  of  the  purchaser  at  the  foreclosure  sale.*  It  is  a 
cardinal  rule,  however,  that  a  purchaser  at  a  tax  sale  comes 

*  Williams  v.  Townsend,  31  N.  Y.  So  one  who  holds  a  qnitclaim  deed 

411;  Sturdevant  v.  Mather,  20  Wis.  to  property  previously  conveyed  may 

576.  purchase  same  at    tax  sale:    Curtis 

2  Middleton  Sav.  Bank  v.  Bachar-  v.  Smith,  42  Iowa.  665. 

ach,  46  Conn.  513;  Jacks  v.  Dyer.  31  » Wri^'ht  v.  Walker.  30  .Ark.  44. 

Ark.  334.     Possession  under  a  deed  *  Becker  v.  Howird,  6  'I'homp.  Sc 

which  conveys  no  interest  will  not  C.  (N.  Y.)  60;!;  4  Hun  (N.  Y.).  3.".!). 

disqualify   the   grantee  to  purchase  Tiiis  is  souvtines  denied.    See^^mith 

the  property  when  sold  for  taxes.  v.  Lewis,  2  West  Va.  o9. 


4S6  ABSTRACTS    OF    TITLE. 

strictly  and  rii!;idly  witliin  the  rule  of  ^^ caveat  emqytor,^^'^  but 
this  has  reference  to  the  methods  by  which  he  acquires  title, 
and  not  to  antecedent   matters. 

§  11.  Redemption,  The  subject  of  redemption  from  tax 
sales  bears  a  strong  analogy  to  the  satisfaction  and  discharge 
of  judgments,  and  raises  many  of  the  same  qnestions  in  re- 
gard to  the  method  of  treating  same  in  tiie  abstract.  It  is 
not  the  usual  custom  of  examiners  to  make  special  mention 
of  a  redemjition,  as  the  certificate  is  presumed  to  be  a  suffi- 
cient statement  of  the  condition  of  the  title  at  its  date.  But 
in  view  of  the  current  of  authority,  which  ever  inclines  to 
limit  the  examiner's  liability  to  the  actual  occurrences  during 
the  period  covered  hy  his  search,  irrespective  of  subsisting 
but  previously  contracted  liens,  it  would  seem  a  far  more  sat- 
isfactory practice,  and  one  tending  to  greater  certainty  in 
arriving  at  couclusions  or  passing  opinions,  to  show  the  ex- 
tinguishment of  any  and  every  lien  which  former  examina- 
tions may  have  disclosed,  except  where  this  has  been  effected 
by  the  statute  of  limitations.  From  two  to  three  years  is  the 
Deriod  ordinarily  allowed  in  which  the  owner  or  interested 
party  may  discharge  the  obligation  imposed  by  the  levy 
of  the  tax  and  relieve  the  land  from  its  burden.  During 
this  period  the  purchaser  has  a  contingent  interest,  which, 
after  the  day  of  redemption  has  passed,  may  ripen  into  an 
absolute  title.  This  contingency  may  be  defeated  by  payment, 
and  when  such  is  the  case,  it  will  often  become  as  proper  a 
matter  for  special  mention  as  a  release  or  discharge  of  a  mort- 
gage. Where  the  sale  and  redemption  both  occur  during 
the  period  included  and  covered  by  the  dates  of  the  examina- 
tion the  whole  transaction  may  with  propriety  be  wholly  dis- 
regarded, since  it  only  amounts  to  a  pajnnent  of  the  tax; 
but  where  a  former  examination  discloses  a  sale,  and  a  con- 
tinuation is  made  during  the  redemption  period,  the  lien  in 
the  meantime  having  been  extinguished,  such  fact  should 
affirmatively  appear,  and  should  the  abstract  be  silent  in  this 
particular,  a  requisition  for  further  information  should  be 
made  by  counsel  before  passing  the  title. 

1  HamiUon  v.  Valiant,  30  Md.  139. 


TAXES    AND    TAX    TITLES.  487 

§  12.  Certificate  of  Sale.  Certiticutes  of  sale  are  rarely 
recorded,  tiioiii^-h  tliey  undoubtedly  vest  in  the  purchaser  an 
equitable  interest  in  tlie  land  which  entitles  him  to  be  clothed 
with  the  legal  title  at  any  time  after  the  ])eriod  of  redemption 
has  expired,  and  before  his  right  has  been  barred  by  the 
statute  of  limitation.^  The  right  to  record  all  such  certificates 
and  assignments  thereof,^  when  sucii  assignments  are  duly 
sealed,  attested  by  witnesses,  and  acknowledged  in  conform- 
ity to  law,  is  often  given  by  statute,  and  when  recorded  in  the 
proper  county  tiiey  have  the  same  effect  as  other  records 
therein.  When  found  upon  the  records  they  are  shown, 
if  prior  to  deed,  as  a  lien  or  charge  upon  the  land  and  after 
the  course  of  title  ;  when  followed  by  deed  they  are  briefly 
noted  in  connection  with  that  instrument,  either  adversely  or 
otherwise.  A  synopsis  of  a  certificate  of  sale  should  follow 
the  original,  and  recite  the  facts  stated  therein.  The  form 
will  vary  as  the  certificate  may  be  made  in  pursuance  of  a  judg- 
ment, as  in  Illinois;  or  by  the  county  treasurer  under  the  law, 
without  judgment,  as  in  AVisconsin.  An  examjile  of  the  lat- 
ter form  is  given.  The  reader  is  referred  to  illustrations  of 
sheriff's  certificates  in  other  parts  of  the  work. 

II ugh  McDermott.  Coimty']  Tax  Certificate. 

Treasurer     of   Kenosha  \  Dated,  etc. 

County,  Wis.,  )■  *  *  *  * 

to  4f  *  «-  * 

William  Gaffe.  J       Said  Treasurer  certifies  that 

he  did,  at  j!>?fiZ/c  auction,  pur- 
suant to  notice  given  as  hy  law  required,  on  May  1, 18S3,  sell 
to  William  Gaffe,  {or  the  coimty  of  Kenosha,)  the  following 
desci'iJjed  real  estate  {describing  same)  far  $6.50,  being  the 
amount  due  for  taxes,  interest  and  cJiarges  on  said  lands  for 
the  year  18S2,  and  that  said  William  Gaffe  {or  assigns)  loill  be 
entitled  to  a  deed  of  same  in  three  years  from  date,  unless 
sooner  redeemed  according  to  law. 

'  Blackw.  on  Tax  Titles,  *372.  focteJ  in  the  liantls  of  the  tax  pur- 

2  The  assii,niee  of  a  tax  certificate  chaser:     Light   v.    West.  4'2    Iowa, 

holds  it  sul).ject  to  all  the  infirmities  138;  Besore  v.  Dosh,  43  Iowa,  211. 

by  which  it  would    have  been  af- 


488  ABSTKACTS    OF    TITLE. 

§  13.  Tax  Deeas.  Neither  the  lei^al  nor  eqnital)le  title  to 
lands  sold  for  non-paj'ment  of  taxes  vests  in  the  purchaser 
until  the  execution  and  delivery  of  tlie  tax  deed.*  This  deed 
does  not  operate  ipso  facto  to  transfer  the  title  of  the  owner  as 
in  ordinary  deeds  between  individuals,  but  is  the  last  act  of  a 
series  of  proceeding's  upon  the  regularity  of  which  it  depends 
for  its  character  and  effect.  It  is  not  title  in  itself,  nor,  unless 
aided  by  statute,  even  evidence  of  it.  Its  recitals  bind  no 
one,  and  it  creates  no  estoppel  upon  the  former  owner.'^  Tlie 
mere  production  of  the  deed,  in  the  absence  of  statutory'  .'iid, 
creates  no  presumption  in  its  favor  until  all  the  anterior  pro- 
ceedings prescribed  by  law  have  been  affirmatively  shown  to 
have  been  com])lied  with,  when  it  becomes  conclusive  evidence 
of  title  according  to  its  extent  and  purport.  This  doctrine, 
which  has  long  obtained  in  this  country  is  based  upon  the 
policy  that  it  is  better  that  the  purchaser  should  lose  the  snniU 
amount  of  his  bid  rather  than  the  owner  should  furfeit  a  val- 
uable estate,  where  tlie  proceedings  show  irregularity  or  ille- 
gality,' and  the  burden  of  proving  title  under  tax  deeds  has 
been  thrown  upon  him  who  asserts  such  title. 

§  14.  Continued — Statutory  Modifications.  Though  the 
rule  of  the  common  law,  that  he  who  affirms  the  existence  of 
a  material  fact  must  prove  it,  was  for  many  years  applied  to 
sales  for  taxes  in  all  its  unbending  rigidity  until  the  astuteness 
of  judicial  refinement  had  rendered  almost  inoperative  all 
legislation  providing  for  such  sales,  a  marked  change  is  now 
apparent  in  many  States.  Stringent  legislation  has  endeav- 
ored to  counteract  the  tendency  of  judicial  refinement,  by  de- 
claring the  operation  and  effect  of  tax  deeds,  and  such  con- 
vej'ances  in  a  majority  of  the  States,  when  formal  and  duly 
executed  are  taken  2i^  prima  facie  or  presumptive  evidence 
of  the  regularity  of  all  proceedings  from  the  listing  or  valua- 
tion of  the  land  up  to  the  issuance  of  the  deeds,  while  a  few 

1  Stephens  v.  Hohnes,  26  Ark.  48;  Jackson  v.  Esty,  7  Wend.  148. 
Ins.   Co.   V.    Scales,    27    AVis.   640;  ^Blackw.  on  Tax  Titles,  *68;  Den- 
Bracket  V.   Gilmore,  15   Minn.  245;  ning  v.   Smith,  3    Johns.    Ch.  344; 
Lake  v.  Gray,  35  Iowa,  44.  Jackson  v.  Mo.se,  18  Johns.  442. 

2Blackw.    on    Tax    Titles,    *364j 


TAXES    AND    TAX    TITLES.  48 9 

States  have  gone  so  far  as  to  declare  sncli  deed  conclusive  evi- 
dence of  every  matter  or  fact  required  by  law  to  make  a  good 
and  valid  sale  and  vest  title  in  the  ])urchaser,  except  the 
facts  of  exemption,  non-payuient,  and  redemiUion,  and  as  to 
those  facts  it  is  made  prima  facie  evidence.'  Whether  the 
legislature  possesses  the  ])o\ver  to  tieclare  a  deed  conclu- 
sive evidence  of  material  facts,  upon  which  the  power  to 
sell  and  convey  de|)jnds,  is  a  disputed  jioint,  the  discussion 
of  which  can  not  be  entered  into  here,''  but  whenever  it  is 
shown  that  any  essential  ))artlcular  in  the  anterior  j)roceed- 
ings  has  been  irregular,  the  authorities  are  quite  harmonious 
in  declaring  its  prima  facie  character  to  be  lost,"*  and  when 
the  j9r/m«yacid  character,  as  established  by  statute,  is  over- 
thrown, the  common  law  princij)les  stated  in  the  preceding 
section,  at  once  attach,  and  the  person  assei'ting  the  title  must 
prove  by  satisfactory  evidence  the  regularity  of  the  proceed- 
ings. The  law  declaring  a  tax  deed  prima  facie  evidence  of 
title,  does  not  dispense  with  the  statutory  requirements  which 
precede  the  sale,  but  only  shifts  the  burden  of  ])roof  from  the 
party  claiming  under  the  deed  to  the  party  impeaching  it.* 

§  15.  Formal  Parts.  The  form  and  substance  of  tax  deeds 
is  usually  prescribed  by  statute,  in  which  case  a  strict  con- 
formity is  required  or  the  deed  will  be  void,^  though  if  de- 
fective a  new  deed  will  actually  issue  to  the  person  entitled,"^ 
and  tha  deed  will  not  be  avoided  for  slight  irregularities  or 
variances  from  the  statutory  form.^  The  ordinary  incidents 
of  deeds    attach   to  conveyances  under  consideration  and    in 

'  See  Gwynne  v.  Neiswanger,    18  son  v.  Ware,  43  Iowa,  4")."). 

Ohio,  400;  Allen  v.  Armstrong,  16  *  Williams   v.  Kirtland,    13  Wall. 

Iowa,  508.  306. 

2  Consult  Blackw.  on  Tax  Titles,  ^^  Chandler  r.  Spear,  22  Vt.  388; 
80.  83,  365  et  seq.;  Cooley  on  Taxa-  Boardman  i'.  Bomne,  20  Iowa,  134; 
tion,  356;  and  see  MacCready  v.  Kruger  r.  Knob,  22  Wis.  429.  The 
Sexton,  29  Iowa,  356,  and  Steeple  v.  form  in  such  citse  becomes  substance. 
Downing,  65  Ind.  501,  holding  and  must  be  strictly  pursued:  At- 
against  such  deeds.  kins  v.  Kuiman,  20  Wend.  249. 

3  Sibley  ?;.    Smith,   2  Mich.   486;  « Finley  r.  Brown,    22  Iowa.  538; 
(h-aves  v.  Bruen,   11  111.  431;   Tur-  Woodman  v.  Clapp.  21  Wis.  350. 
ney  ('.  Yeoman,    16  Ohio,  24;  Ray-  "Bowman    i\    Cockerill,    6    Kan. 
burn  V.  Kuhl,  10   Iowa,  92;  Thomp-  311. 


490  ABSTRACTS    OF   TITLE. 

most  respects  tliej  stand  upon  tlie  same  footing  as  deeds  be- 
tween individuals.'  To  attempt  an  enumeration  of  the  special 
distinctive  features,  however,  would  be  to  refer  to  the  statutes 
of  every  State  in  the  Union,  and  not  alone  to  one  but  to  many, 
as  few  subjects  have  been  so  harassed  by  legislative  tinker- 
ing, both  as  to  the  methods  of  sale  and  its  evidence,  as  the 
sale  of  land  for  taxes.  But  inasmuch  as  the  deed  does  not 
derive  its  validity  from  its  capacity  as  an  independent  convey- 
ance to  transfer  the  estate  described  in  it,  but  from  the  exist- 
ence of  a  power  and  compliance  with  prescribed  conditions, 
it  should  show  upon  its  face  an  acknowledgment  of  the  power 
in  pursuance  of  wliicli  it  purports  to  have  been  executed.^ 
This  rule  is  of  uniform  operation  everywhere.  All  the  recitals 
provided  by  law,  which  go  to  show  full  compliance,  are  neces- 
sary and  integral  parts,  and  the  failure  to  recite  any  one  of  the 
prerequisites  to  a  valid  sale  will  raise  a  presumption  that  the 
omitted  requirement  was  not  complied  with.*  The  execution 
and  authentication  ara  purely  matters  of  local  statutory  reg- 
ulation. The  later  forms  of  tax  deeds  prescribed  by  statute 
are  very  short  and  concise,  and  the  recitals  confined  to  a  few 
material  points,  while  their  legal  effect  and  operation  is  ex- 
pressly defined  as  in  case  of   deeds  between  individuals  after 

'  Blakely  v.  Bestor,  13  111.  708.  The  as  to  how  he  executed  a  power,  must 

construction  of  a  tax  deed  in  respect  set  out  the  facts  and  the  manner  in 

to  the  description  of    the  land  con-  which  he  performed  the  act,  and  let 

veyed  must  be  the  same  as  if  such  the  court  determine   whether  they 

description  were  used   in  a  deed   be-  comply  with  or  in  accordance  with 

tween private  individuals.     The  doc-  the  law.     The  sale  of   property  for 

trine  of  strict   construction,    as  ap-  taxes  is  an  exj>arte  proceeding.   The 

plied  to  the  execution  of  naked  stat-  officer  acts  at  his  own  peril,  and  must 

utory  powers,  has  no  application  in  perform  every  prerequisite  required  , 

such  case:  Blakely  v.  Bestor,  13  111.  by  statute  before  the  title  of  a  citi- 

708.  zen    to  his   property  can   be   taken 

^   ^Blackw.  Tax  Tit.  *368;   Jackson  fi-om  him.     The  deed  must  show  af- 

V.  Roberts,  11  Wend.  425;    Tolman  firmatively  that  the  law  has   been 

V.  Emerson,  4  Pick.  160.  complied   with    in   all    particulars: 

3  Long  V.   Burnett,   13    Iowa,  29;  Spurlock  i'.  Allen,  49  Mo.  178;    Ab- 

Laiu  V.  Cook,  15  Wis.  446;  Large  v.  bott  v.  Doling,  49  Mo.  302;  Annan 

Fisher,  49  Mo.   307.     A  ministerial  v.  Baker,  49  N.  H.  161. 
officer  in  making  a  return  or  recital 


TAXES   AND   TAX   TITLES.  491 

statutory  forms.  The  execution  of  the  deed  is  confided  to 
the  county  clerk,  or  otlier  ofHcer  having  tlie  custody  of  tlie 
tax  records.  A  statutory  deed  as  prescribed  in  Illinois  and 
many  of  the  "Western  States  may  be  shown  in  the  abstract,  as 
follows : 

E.  F.  C.  KloU-e,'  Coun  fy  ^      Tax  Deed. 
Clerk  of  Cook  Co.,  III.   |     Dated,    etc. 


to 

* 

* 

•K 

* 

Tiram  Johnson. 

* 

* 

* 

* 

Doc.  203,073. 

* 

* 

* 

•«• 

Recites,  that  at  apiiblic  sale  of 
real  estate  for  non-payment  of  taxes,  made  in  the  county 
aforesaid  on  Get.  12,  1876,  the  following  descrihed  real  estate 
ims  sold,  to  wit:  [descrihiny  same]  and  same  not  having  heen 
redeemed  from  said  sale  and  it  appearing  that  the  holder  of 
ihe  certificate  of  pmrchase  has  complied v:iith.  the  law  necessary 
tc>  entitle  him  to  a  deed  of  said  real  estate: 

Therefore^  said  county  clerk  in  consideration  of  the  prem- 
ises and  hy  virtue  of  the  statute,  grants  and  conveys  to  said 
second  party  the  real  estate  hereinhefore  descrihed,  subject  to 
any  redemption  provided  hy  law. 

Signed  hy  said  clerk,  and  the  seal  of  the  County  Court  af- 
fixed. 

Acknowledgm  ent. 

Inasmuch  as  the  deed  is  statutory  and  can  onl\'  l)e  in  one 
f(  rm,  a  shorter  method  is  sometimes  adopted,  which,  after 
the  formal  parts  above  shown,  would  read  somewhat  in  this 
manner: 

'Conveys  {viith  other  property')  Lot  56,  in  Block  2,  in  Canal 
Trustees'  Subdivision  of  the  south  east  quarter  of  section  17, 
T.  39,  ]Sr.  R.  U,  E.,  Cook  Co.,  Ills.,  sold  Oct.  12,  1S76,  re- 
citing sale  of  same  for  non-payment  of  taxes. 

§  16.      Effect    of    Deed    as  Evidence.      The    form    last   con- 

'  Where  the  county  is  the  grantor,  procurement  of  the  county  clerk  uiny 
it  must  be  named  as  such,  while  the      be  shown  in  the  execution. 


492  ABSTKACTS    OF   TITLE. 

eidered,  and  wlilcli  will  not  vary  materially  from  that  now  in 
general  use  wliere  a  statutory  form  is  prescribed,  is  very 
meagre  in  recitals.  Its  effect  as  evidence  is  dependent  on  the 
statute,  which  has  made  it  prima,  facie  evidence,  in  all  con- 
troversies and  suits  in  relation  to  the  right  of  the  purchaser, 
or  those  claiming  under  liim,  to  the  property  thereby  con- 
veyed, of  the  following  facts:  That  the  property  conveyed 
was  subject  to  taxation  at  the  time  the  same  was  assessed, 
and  had  been  listed  and  assessed  in  the  time  and  manner  re- 
quired by  law;  that  the  taxes  or  assessments  were  not  paid  at 
any  time  before  the  sale;  that  the  property  had  not  been  re- 
deemed from  the  sale  at  the  date  of  the  deed;  tliat  it  was 
advertised  for  sale  in  the  manner  and  for  the  length  of  time 
required  by  law;  that  it  was  sold  for  taxes  or  special  as- 
sessments, as  stated  in  the  deed;  that  the  grantee  in  the  deed 
was  the  purchaser  or  assignee  of  the  purcluiser;  that  the  sale 
was  conducted  in  the  manner  required  by  law,^  and  in  addi- 
tion any  judgment^  for  the  sale  of  real  estate  for  delinquent 
taxes  estops  all  parties  from  raising  any  objections  thereto  or 
to  a  tax  title  based  thereon,  which  existed  at  or  before  the 
rendition  of  such  judgment,  and  could  have  been  presented  as 
a  defense  to  the  application  for  such  judgment  in  the  court 
wherein  the  same  was  rendered,  and  as  to  all  such  questions 
the  judgment  itself  is  declared  to  be  conclusive  evidence  of 
its  regularity  and  validity  in  all  collateral  proceedings,  ex- 
cept in  cases  where  the  tax  or  assessment  has  been  paid;  or 
the  property  w^as  not  liable  to  the  tax  or  assessment.  The 
effect  of  statutes  similar  to  the  foregoing  and  of  such  statutes 
as  have  been  enacted  to  quiet  tax  titles  and  secure  the  prop- 
erty conveyed  by  tax  deeds,  has  been  to  give  stability  to  such 
deeds  and  remove  the  chances  of  reinvestnre  in  the  original 
owner.  Yet  even  in  tlie  face  of  such  statutes  tlie  courts  still 
cling  to  the  former  doctrines  in  this  respect  and  critically  in- 

»R.  S.  111.  1874,  Chap.  120;  R.   S.  reqniied    in    many  States,  but  the 

Wis.  1878,  Chap.  50,  and  see  K.  S.  county  treasurer  is  given  power  to 

Ind.  1876,  123.  sell    lands    returned  as  delinquent 

2  No  application  for  judgment  is  after  notice  has  been  given. 


TAXES    AND   TAX   TITLES.  493 

spect  deeds  when  offered  in  support  of  title,'  and  where  a 
deed  is  void  upon  its  face,  as  when  there  is  a  want  of  power 
on  the  part  of  the  officer,  or  where  tliere  is  included  in  the 
amount  of  the  sale  that  for  which  the  land  could  not  be  sold, 
and  which  is  entirely  unauthorized,  it  has  been  held  not  to 
divest  the  owner  of  his  title  to  the  land,  even  though  the 
special  limitation  of  the  statute  has  run  in  favor  of  such 
deed.^  In  respect  to  the  description  of  the  land  conveyed,  a 
tax  deed  is  governed  by  the  same  rules  of  construction  as 
other  deeds.* 

§  17.  Tax  Deed — Possession — Limitation,  Tiadical  de- 
fects in  tax  sales  and  resulting  conveyances  may  be  remedied 
in  many  of  the  States,  by  compliance  with  curative  statutes 
which  provide,  that  where  purchasers  unite  possession  and 
piiymeiit  of  taxes  for  a  definite  period  to  the  tax  deed,  an  un- 
imjjeachable  title  inures  to  such  purchaser;  and  this,  even 
though  on  its  face  the  deed  shows  that  the  sale  was  irregular, 
if  there  is  nothing  to  cliarge  the  purchaser  with  actual  bad 
faith.*  Good  faith  is  always  presumed  until  the  contrary  is 
made  to  appear,  and  is  imported  by  the  deed  itself.^  "Where 
the  holder  of  the  tax  title  has  become  entitled  to  the  protec- 
tion of  the  statute,  all  questions  as  to  the  regularity  of  the 
tax  proceedings  are  set  at  rest,  except,  perhaps,  those  which 
concern  the  power  and  jurisdiction  of  the  taxing  officers  or 
the  liability  of  the  land  to  taxation.  The  tax  deed  then  be- 
comes conclusive  evidence  that  the  taxes  were  properly  levied, 
and  that  all  the  requirements  of  law  were  complied  with." 
But  where  a  deed  discloses  on   its  face  that   it  is  illegal,  and 

*  A  statute  which  makes  a  tax  deed  porter,    37;    Knox  r.  Cleveland,  lo 

conclu-ive  evidence,  is  in  derogation  AVis.  215.     But  see  Dalton  v.  Lucas, 

of  the  common   hiw   and   must  be  63  III.  337. 

strictly    construed:     Gavin   v.  Shu-  *  Biake  y  r.  Bestor,  13  111.  703. 

man,  23  Ind.  32;  and  see   Beeknian  *  Dalton    r.    Lucas,    63    111.    337. 

V.  Bifjham,  1  Seld.  (N.  Y.)  3C6;  Mc-  Compare.  Bowman  v.  Wettig.  39  111. 

Cready    v.    Sexton,    89    Iowa,  3" 6.  416;   and  see  Geekie  r.  Kirby  Car- 

Cooley  on    Taxation,  356;  Blackw.  penter  Co.,  9  Reporter.  37. 

on  Tax  Tit.  79.  ^  Dicb-nson  v.  Breeden,  30  III.  279. 

2  Annan  v.  Baker,  49  N.  H.  161;  *Knox  v.  Cleveland,  13  Wis.  245. 
Geekie  v.  Kirby  Carpenter  Co.,  9  Re- 


494  ABSTRACTS   OF   TITLE. 

has  been  executed  in  violation  of  law,  a  statute  of  limitation 
can  not  be  brought  in  to  aid  its  validity.'  The  constitution- 
alit}''  of  special  statutes  providing  for  a  shorter  period  than 
that  provided  in  the  general  statute  of  limitations  has  been 
the  subject  of  much  debate,  and  is  not  yet  a  settled  question; 
but  there  can  be  no  doubt  that  a  defective  deed,  though  in- 
valid as  a  conveyance,  will  yet  be  admissible  as  color  of  title, 
and  when  followed  by  actual  adverse  possession  will  set  the 
statute  in  operation.* 

§  18.  Tax  Abstracts.  "Whenever  a  tax  deed  is  relied  on 
as  a  foundation  of  title  which  is  independent  of  and  adverse 
to  all  other  titles,  particularly  that  of  the  person  who  was  last 
seized  of  the  fee,  a  full  exposition  of  the  method  by  which 
the  right  was  acquired  is  an  essential  preliminary  to  demon- 
strate the  validity  of  all  succeeding  conveyances.  The  tax 
deed,  unaided  by  statute,  is  not  sufficient  to  demonstrate  title, 
though  it  may  be  prima  facie  evidence  of  such,  but  the 
prior  steps  must  be  shown  and  all  the  requisites  necessary  to 
a  comj^lete  and  perfect  title  under  the  statute  must  be  fully 
and  succinctly  stated.*  An  abstract  of  a  tax  title  may  consist 
of  a  sjmopsis  of  the  proceedings  from  the  listing  or  assess- 
ment to  the  sale  and  issuance  of  deed,  with  all  the  material 
matters  copied  in  full;  or  if  so  directed,  a  narrative  statement 
of  what  was  done,  the  times,  manner,  place,  etc.;  but  all  suffi- 
ciently explicit  to  enable  counsel  to  see  that  everj'  material 
step  has  been  taken,  and  that  in  a  proper  and  legal  manner. 

1  Shoat  V.  Walker,  6  Kan.  65.     In  463;  Washburn  v.  Cutler,  17  Minn, 
this  case  the  law  under  which  the  361;  Wing  v.  Hall,  44  Vt.  118. 
deed  was  issued  had  been  repealed  ^Mr.  Blackwell  inhis  work  on  Tax 
prior  to  such  issue.     Compare  Dal-  Titles    gives     some    very    valuable 
ton  V.  Lucas,  63  111.  337.  forms  for  an  abstract  of  this  charac- 

2  Dillingham  v.  Brown,  38  Ala.  ter.  See  Blackw.  on  Tax  Tit.  Ap- 
313;  Chapman  v.  Templeton,  53  Mo.  pendix. 


CHAPTER   XXX. 


DESCENTS. 


§  1- 

Title  by  descent. 

§1G. 

2. 

Nature,    operation,    and  inci- 

dents of  the  title. 

17. 

3. 

Inheritance  as  dependent  on 

18. 

seizin. 

19. 

4. 

Heirship,  its  rights  and  privi- 

20. 

leges. 

21. 

5. 

The  line  of  succession. 

6. 

General  rule  of  descents. 

22. 

7. 

The  right  of  representation. 

8. 

Preferences. 

23. 

9. 

Who  may  take  by  descent — 

aliens. 

24. 

10. 

Continued — Adoptive  heirs. 

25. 

11. 

Ancestral  estates — Half  blood. 

26. 

12. 

Surviving  consorts. 

13. 

Coparceners. 

27. 

14. 

What  descends. 

15. 

How  a,{fected  by  ancestral  cov- 
enants. 

28. 

Liability  for  ancestral  cove- 
nants. 

Creditor's  liens. 

Equitable  conversion. 

Proof  of  heir><hip. 

Proof  of  a  death. 

Continued — Official  registra- 
tion. 

Continued  —  Probate  of 
death. 

Proof  of  birth  and  legiti- 
macy. 

Validity  of  descents. 

Abstract  of  descents. 

Continued — Probate  proceed- 
ings. 

Settlement  without  adminis- 
tration. 

Escheat. 


§  1.  Title  by  Descent.  The  best  known  but  least  under- 
stood title  is  that  whicli  the  hiw  raises  for  tlie  lieir  iijion  the 
death  of  the  ancestor.*  It  is  called  title  by  descent,  aTid 
though  for  practical  ])urposes  it  is  re^-arded  as  a  new  title 
springing  from  the  de;ith  of  the  ancestor,  and  when  asserted 
must  be  so  proved,  yet  in  reality  it  is  but  a  C(uitinuation  of 
the  ancestor's  title,  which  the  law  casts  upon  the  heir  at  the 
moment  of  the  ancestor's  death. ^     The  heir  is  regarded  in  law 


'  The  term  "  ancestor,"  when  used 
with  reference  to  the  descent  of  real 
property,  embraces  all  persons,  col- 
laterals as  w^ell   as  lineals,   through 


whom    an    inheritance  is    derived: 
Wheeler  v.  Clutterbuck,  52  N.  Y.  G7. 
2  Hopkins  r.  McCann,  19  III.  113; 
Marshall  v.  Rose,  86  111.  374. 


(495) 


496  ABSTRACTS    OF   TITLE. 

as  a  legal  appointee  to  receiv^e  the  title/  and  tliis  appointment 
he  can  neither  disclaim  nor  avoid.^  AVhenever  the  death  of 
any  person  is  shown,  until  rebutted,  the  presumption  is  that 
lie  died  intestate,^  and  that  his  heirs  take  his  estate  under  the 
laws  of  descent.*  Posthumous  cliildren  take,  in  all  respects 
as  though  the^'had  been  born  in  the  life-time  of  the  intestate.* 
§  2.  Nature,  Operation  and  Incidents  of  the  Title.  The 
title  of  an  heir  is  not  so  much  an  acquisition  as  a  succes- 
sion. The  death  of  the  ancestor  does  not  create  a  title,  but 
rather  confirms  in  the  heir  that  which  was  previously  inclioate, 
uncertain  and  defeasible.  "  An  estate  of  inheritance  under 
the  feudal  law,"  says  Mr.  Bingham,®  "  existed  only  in  the  con- 
tract between  the  lord,  for  himself  and  his  lieirs  on  the  one 
side,  and  the  vassal,  for  himself  and  his  heirs  on  the  other. 
The  one  contracted  that  the  other  might  have  the  possession 
and  occupation  of  certain  lands,  usually  upon  the  condition 
of  rendering  in  return  therefor  certain  rents  and  services, 
which  the  latter  agreed  to  pay  and  perform.  The  heirs  of 
each  party  were  expressly  named,  and  regarded,  in  the  eyes 
of  the  law,  as  parties  to  the  contract;  and,  when  the  original 
parties  died,  the  heirs  became  the  real  and  acting  parties  to  the 
contract;  and  so  parties  continued  to  succeed  each  other  from 
one  generation  to  another,  so  long  as  there  were  heirs  capable 
of  becoming  parties.  This  contract  right  of  possession  of 
the  lands  constituted  what  is  known  in  the  law  as  an  estate  of 
inheritance,  or  an  estate  in  fee;  and  the  succession  of  one  per- 
son on  the  death  of  another,  is  what,  in  more  recent  times,  is 
said  to  be  the  acquisition  of  title  by  descent."     The  rules  gov- 

1  Coke  Lit.  191.  will  or  not.    See  N.  Y.  Civ.  Co.  Proc. 

2Wm3.  Real   Prop.  75;  2  Black.  §2514. 

Com.  201;  3  Wash.   Real   Prop.  6;  ^Lyont^.  Kain,  36  111.  .362.     In  all 

Moore  v.  Chandler,  59  111.  466.  cases  of   intestacy  the   lex  rei  sifce 

^The  word   "intestate"  properly  governs  the  descent:    Lingen  t'.  Lin- 
signifies  a  person  who  died  without  gen,  45  Ala,  410. 
leaving  a  will;  but  where  it  is  used  ^  Smith  r.  McConnell,  17  111.  135; 
with  respect  to  particular  property,  Sansberry  t'.  McElroy,  6  Bush  (Ky.), 
it  signifies  a  person  who   died  with-  440. 

out    effectually  disposing    of    that  ^Bing.  on    Descents,    2;  and   see 

property  by  will,  whether  he  left  a  Watk.  on  Descents,  65. 


DESCENTS.  497 

• 

erninsj  the  method  of  descent  and  tlie  classes  of  heirs  who 
shall  take,  and  the  order  whicli  thej  shall  take,  have  been  many 
times  chan2;ed;  the  nature  of  the  estate  has  been  enlarged;  the 
right  of  alienation  during  life  and  disherison  after  death  has 
been  given  to  the  ancestor;  the  estate  nia.y  also  be  diverted 
from  the  heir  to  satisfy  the  ancestor's  debts;  yet  the  fundmental 
principle  of  inheritance  has  remained  practically  unchanged. 
The  contract  on  the  part  of  the  State  as  evidenced  by  the  origi- 
nal grant  still  is,  that  the  grantee  and  his  heirs  may  hold,  pos- 
sess and  enjoy  the  land,  and  on  the  death  of  the  ancestor  the  heir 
succeeds  to  his  rights  in  virtue  of  the  original  agreement,  as 
strictly  as  though  the  riglit  or  power  of  alienation  did  not  ex- 
ist.' The  estate  held  by  this  title  possesses  none  of  the  at- 
tributes of  the  ancient  feudal  estate,  however,  but  is  entire  in 
the  ancestor  and  his  heirs,  with  no  reversion  or  other  feudal  in- 
cident.^ 

§  3.  Inheritance  as  Dependent  Upon  Seizin.  It  was  a 
primal  rule  of  the  common  law,  that  no  person  could  inherit 
real  estate,  unless  he  was  heir  to  the  person  last  seized.  Un- 
der the  application  of  this  rule  it  was  not  sufficient  to  be  heir 
to  the  person  who  last  had  the  right  to  the  land,  but  not  the 
actual  seizin.  This  rule  grew  out  of  the  feudal  doctrine, 
which  required  the  heir  to  be  of  the  blood  of  the  first  pur- 
chaser, and  the  seizin  of  the  last  possessor  was  regarded  as 
presumptive  evidence  of  this  fact.'  The  rule  was  subject  to 
some  exceptions  in  England,  and  it  would  seem  that  in  this 
country  it  has  never  been  adopted  in  a  majority  of  the  States, 
and  in  the  others  has  been  expresslj^  or  impliedly  abrogated, 
and  every  possible  right  or  title  which  the  ancestor  may  have 
liad  in  land,  whether  accompanied  b}'  actual  seizin  or  posses- 
sion, or  not,  is  rendered  transmissible  by  inheritance,  with  the 
exception  of  estates  for  years,  which  are  regarded  as  chattels, 
and  estates  for  his  own  life.*    The  word  "  seizin  "  is  now  equiv- 

'  Bing.  Descents,  3.  Hendricks,  o  John  C;is.  214;    Rates 

^Ilaynes  v.   Bourn,   42  Vt.   686;  v.  Shraeder,  i:KTolin.  2G0;  S  Walk. 

Wallace  v.  Harmstad,  44  Pa.  St.  429.  (Ol.iu)  ".:33;  Williams  r.  Amory,  14 

3  Co.  Lit.  14;  Watk.  on   Desc.  65.  Mass.  20. 
*3  Kent.    Com.  388;    Jackson  v. 
32 


498  ABSTRACTS    OF   TITLE. 

alcnt  to  "  ownersliip,"  and  though  the  term  is  still  retained 
both  in  the  statutes  and  the  language  of  the  courts,  its  legal 
significance  does  not  extend  further  than  above  stated,  and  is 
in  no  way  dependent  upon  possession.  Every  right  or  inter- 
est, legal  or  equitable,  to  which  the  intestate  was  in  any  man- 
ner entitled  at  his  decease,  except  estates  which  come  within 
the  definition  of  chattels  real,  are  valid  subjects  of  descent. 

§  4.  Heirship — Its  Rights  and  Privileges.  The  title  of 
an  heir  is  held  in  his  own  right,'  subject  only  to  tlie  pay- 
ment of  the  debts  of  the  ancestor,''^  or  the  fulfillment  of  his 
covenants,^  and  though  he  may  afterward  be  divested  by  tlie 
decree  of  the  probate  court  and  sale  by  the  administrator, 
yet  until  sncli  contingency,  he  is  the  owner,  and  entitled  to 
all  rents,  profits  or  other  beneficial  incidents  flowing  from 
the  land.*  Subject  to  the  lien  of  the  creditors,  he  may  make 
any  disposition  of  tlie  land  he  may  choose,  and  after  due  pro- 
bate and  administration,  together  with  an  extinguishment  of 
the  debts,  the  title  becomes  perfect  in  him  or  his  assigns.^ 
He  is  favored  by  the  law,  and  his  inheritance  is  never  defeated 
except  by  the  clearest  proof  of  intention  on  the  part  of  the 
ancestor,  and  although  he  is  expressl}'-  excluded  by  the  terms 
of  a  will,  yet,  unless  some  valid  and  eflfectual  disposition  of 
the  land  is  made  to  some  other  person,  it  descends  to  him  by 
operation  of  law,  and  in  case  of  an  invalid  or  insuflicient 
devise,  he  takes  in  preference  to  the  residnary  devisee.^ 

§  5.  The  Line  of  Succession.  The  law  invests  the  heir 
with  the  title  of  the  ancestor,  but  it  also  designates  who  is  to 
be  that  heir,  and  in  tliis  respect  is  rigid,  arbitrary  and 
unyielding.''     The   common   law  canons  of  descent  ®  have  no 

^  Walbridge  v.  Bay,  31  111.  379.  ^  There  were  seven  common  law 

^Foltz    V.    Prouse,    17    111.    487;  canons  of  descent  to  the  effect:  1, 

Cockerel  v.  Coleman,  55  Ala.  583.  that  inheritance  should  always  de- 

•^  Miller  v.  Bledsoe,  61  Mo.  96.  scend    lineally,    and    never    ascend 

*  Foltz  ?;.  Prouse,  17  111.  487.  lineally;  2,   that  males  are  alwaj's 

^  Vansyckle  I'.  Richardson,   13  III.  preferred  to  females;  3,   of  two  or 

171.  more  males  in    equal    degree,   the 

^Haxton  v.    Corse,    2  Barb.    Ch.  eldest     only     should     inherit,     but 

506;  Rosevelt  v.  Fulton,  7  Cow.  71.  females    altogether;    4,   that  lineal 

'' Tyler  t?.  Reynolds,  53  Iowa,  146.  descendants    in    infinitum,  of   any 


DESCENTS.  409 

application  in  the  United  States,  but  rules  have  been  estab- 
lished in  every  State  that  rei^nlate  the  line  of  succession  and 
declare  who,  under  certain  conditions,  shall  be  the  heir.  Suc- 
cession in  the  United  States,  as  in  England,  follows  the  line 
of  consanguinity/  except  where  the  surviving  husband  or 
wife  is  allowed  a  participation  as  a  successor,  and  a  person, 
to  successfully  establish  his  claim  of  title,  must  bring  him- 
self within  one  of  the  classes  prescribed  by  the  statute,  as 
well  as  show  that  no  nearer  degrees  of  kindred  exist  which 
by  statute  would  defeat  the  claim  which  he  asserts. 

§  6.  General  Rule  of  Descents.  While  there  is  a  sad 
lack  of  harmony  in  the  statutes  of  descent  of  the  different 
States,  which  not  only  prevents  the  formulation  of  a  jiositive 
rule,  but  also  any  intelligent  method  of  general  treatment, 
aside  from  a  summary  of  each  State  in  detail,  it  may  be 
stated  generally  that  five  well  defined,  principles  relative  to 
the  succession  are  discernible.  The  descent  in  accordance 
with  these  principles  is  as  follows:  Real  estate  of  an  intes- 
tate descends  1,  to  his  lineal  descendants,  except  where  a  sur- 
viving consort  is  allowed  to  participate;  2,  to  his  father, 
varied  in  some  cases  by  a  participation  of  brothers  and 
sisters;  3,  to  his  mother,  varied  as  before  by  collateral  par- 
ticipation; 4,  to  his  collateral  relatives;  and  5,  to  the  State 
by  escheat.  These  five  elementary  principles  are  covered  by 
a  network  of  conditions  and  provisos,  differing  mt)re  or  less 
in  every  State,  and  the  application  of  these  conditions  governs 
the  descent,  and  directs  it  into  some  one  of  the  channels 
above  enumerated.  In  all  cases  not  provided  for  b}'  the  stat- 
ute, the  inheritance  descends  according  to  the  course  of  the 
common  law. 

§  7.      The   Right  of  Representation.      This   is  the  right  of 

person  deceased,    should    represent  collaternl    kinsman    of    the    whole 

their  ancestor;  5,  on  failure  of  lineal  blood;  7,  in  collateral  inli  ritances, 

descendants,  the  inheritance  should  the  male  stock  should  be  prct'erred 

descend  to  the  collateral  relations,  to  the  female,  unk'ss  where  the  lands 

being  of  the  blood  of  the  first  pur-  had,    in    fiict,    descended     from    a 

chaser,  subject  to  the  three  preced-  female:  2  Black.  Com.  208,  2:^. 
ing  rules;  G,  the  collateral  heir  of  the  'See  Taljle  of  Consanguinity,  on 

person  last  seized  must  be  his  next  page  30  of  this  work. 


500  AIJSTEACTS    OF   TITLE. 

the  lineal  descendants  to  take  the  portion  whicli  their  ances- 
tor would  liave  taken,  and  is  called  inheritance  jper  stirpes. 
It  is  a  statutory  right,  and  by  reason  of  tlie  diversity  of  the 
statutes  of  tlie  different  States,  no  positive  rule  can  l)e  stated. 
Generally,  if  one  of  several  children  shall  have  died  before 
the  ancestor,  the  heirs  of  such  child  will  take  the  portion 
Avhich  would  have  descended  to  it  if  it  had  survived  the 
ancestor,*  and  the  same  rules  apply  for  the  determining 
who  are  the  heirs  of  such  child,  as  in  any  other  case  of 
descent.  In  a  few  States,  where  an  intestate  leaves  grand- 
children only,  they  all  take  per  capita.,  or  in  their  own  right,^ 
but  as  a  rule  of  more  general  observance,  the  lineal  descend- 
ants represent  only  their  ancestor.^ 

§  8.  Preferences.  By  the  common  law  canons  of  descent, 
males  were  preferred  before  females,  the  eldest  male  taking 
in  preference  to  others  of  equal  degree,  and  females  equally, 
while  in  collateral  inheritances  the  male  stocks  were  always 
preferred  to  the  female,  except  where,  in  fact,  the  lands  had 
descended  from  a  female.  This  has  all  been  abolished  by  the 
statutes  of  descent  which  provide  in  all  cases  for  equal  par- 
ticipation among  the  members  of  a  class,  and  the  right  of 
primogeniture,  if  it  ever  existed  in  this  country,  is  now 
unknown. 

§  9.  "Who  May  Take  by  Descent — Aliens.  There  is  a  mass 
of  curious  and  obsolete  learning  in  the  books,  relative  to  per- 
sons capable  of  succeeding  to  an  inheritance,  for  the  law  for- 
merly guarded  the  landed  estates  of  the  country  with  jealous 
care,  and  ruthlessly  excluded  from  a  succession  thereto  all 
persons  who  owed  fealty  to  another  sovereign.  Inheritance 
M-as  long  confined  to  citizens  of  the  United  States,  and  aliens 
were  expressly  declared  incapable  of  taking  lands  by  descent, 

^  Dodge  V.  Beeller,  12  Kan.  524;  at  common  law,  only  by  the  applica- 

Crump  V.  Faucett,  70  N.  C.  345.  tion  of  that  rule,  descendants  of  a 

^Coxw.  Cox,  44  Ind.  368;  Eshle-  person  deceased  in  wfinituvi  repre- 

man's  Appeal,  74  Pa.  St.  42.     Cora-  sented  their  ancestor,  and  only  when 

pare  Harris'  Estate,  74  Pa.  St.  452.  the  representation  failed,  were  the 

3  This  is  somewhat  in  accordance  lineal  descendants   of  the  intestate 

with  the  fourth  canon  of  inheritance  next  of  kin  permitted  to  come  in. 


DESCENTS.  501 

or  other  mere  operation  of  law,  and  because  an  alien  could 
liave  no  inheritable  blood  through  which  title  could  be  deduced, 
a  citizen  was  precluded  from  asserting  a  title  so  derived.  In 
case  of  the  death  of  an  alien  owning  lands,  or  of  a  citizen  with- 
out other  than  alien  heirs,  the  lands  of  such  persons  escheated 
to  the  State/  Private  laws  wore  often  passed  to  enable  individ- 
uals to  receive  and  transmit  title,  and  the  eifect  of  such  laws 
was  to  invest  the  person  mentioned  with  inheritable  blood  and 
to  enable  him  to  alien  or  devise  his  property  and  to  transmit 
by  descent  in  all  respects  the  same  as  a  citizen  of  native  birth,'* 
but  not  to  remove  the  barrier  against  alien  lieirs.  But  all  this 
is  of  the  past.  In  States  where  the  doctrine  formerly  prevailed 
it  has  been  swept  away  by  the  liberal  policy  of  later  years  and 
in  the  newer  States  it  never  had  a  recognition,  and  for  all 
practical  purposes,  so  far  as  respects  the  acquisition  and  de- 
scent of  land,  the  alien  and  the  citizen  stand  npon  an  equal 
footing.  In  case  of  descents  in  titles  of  long  standing,  an 
inquiry  into  the  questions  just  noted  is  material  and  necessary, 
and  if,  from  a  view  of  the  facts  shown,  or  of  answers  to  inquiries 
iii^xiis,  it  appears  that  title  is  deduced  through  an  alien,  at  a 
time  when  aliens  were  incapable  of  transmitting  by  descent, 
evidence  of  other  matters,  sutHcient  in  law  to  sup])ort  the  titleof 
the  present  claimant,  should  be  required  before  acce)>ting  same. 
The  laws  of  the  States  removinii;  the  disabilities  of  alienacre 
and  granting  or  withholding  the  privileges  of  citizenship,  are 
not  usually  retroactive,  nor  do  they  possess  any  extra-territo- 
rial effect,  and  the  domicile  of  the  ancestor  at  the  time  of  his 
death  does  not  affect  the  ap])lication  of  the  lex  reis/'tu',  for  no 
State  can  prescribe  qualifications  of  citizenship,  to  be  exercised 
in  another  State,  in  opposition  to  its  local  laws  and  ])olicy,  and 
the  clause  of  the  federal  constitution  declaring  that  the  citizens 
of  each  State  are  entitled  to  all  the  privileges  and  immunities 
of  citizens  in  the  several  states,  is  not  sufficient  to  overcome 
the  rule.' 

1  Craig  r.  Radford,  3  Wheat.  363;  tcsy:  Mfck  v.  Mick.  10  W.-nl.  379. 

Doe  V.   Govorneur,  11  Wheal.  352;  -Parish  r.  Ward.  2X  liaiL.  .--JS. 

Jackson  r.  Green,  7  Wend.  3^33;  Levy  'Gerard's  Titles.    89;    Corfield  r. 

r.  Levy,  6  Pet.  102.    This  extended  as  Corg-'ll.  4  Wash.  (C.  C't.)  ■^71;  Kee- 

well  to  the  estates  of  dower  and  cur-  gau  v.  Guraghty,  101  111.  20. 


502  ABSTUACTS    OF    TITLE. 

§  10.  Continued — Adoptive  Heirs.  The  rights  growing 
out  of  adoption  present  a  series  of  somewhat  similar  views. 
This  act,  being  in  derogation  of  the  common  law  and  of  natu- 
ral right,  confers  upon  the  heir  by  adoption  rights  which  can 
only  be  asserted  strictly  within  the  law,  and  particularly  is 
this  the  case  when  title  is  claimed  in  States  other  than  that 
under  whose  laws  the  lieirship  was  effected.  The  rights  of 
inheritance  acquired  by  an  adopted  heir  in  one  State  can  only 
be  recognized  and  upheld  in  another  State  so  far  as  they  are 
not  inconsistent  with  the  law  of  descent  of  such  latter  State, 
and  his  inheritable  capacit}^  must  be  measured  by  the  laws  of 
the  State  where  tiie  land  is  situate,  and  not  by  that  of  his  late 
ancestor's  domicile,  or  the  State  conferring  inheritable  blood. ^ 

§  11.  Ancestral  Estates — Half  Blood.  A  marked  promi- 
nence may  be  observed  in  the  statutes  of  descent  of  all  the  States 
in  relation  to  ancesti'al  estates  and  the  exclusion  of  all  persons 
who  do  not  partake  of  the  blood  of  such  ancestor.  The  clause 
in  question  pi'ovides  in  substance  that,  in  case  an  inheritance 
comes  to  an  intestate  by  descent,  devise  or  gift  of  one  of  his 
ancestors,  all  those  not  of  the  blood  of  such  ancestor  shall  be 
excluded  from  such  inheritance,  and  the  rule  observed  by  the 
courts  is  general  that,  only  persons  of  ancestral  blood  can  in- 
herit ancestral  estates.^  The  current  of  later  decisions,  how- 
ever, is  uniform  in  declaring  that  the  rule  has  reference  to 
the  immediate  ancestor  from  whom  the  intestate  received  the 
inheritance,  and  not  from  a  remote  ancestor  who  was  the 
original  source  of  title.^ 

§  12.  Surviving  Consorts.  Husbands  and  wives  are  in  no 
sense  of  the  word  next  of  kin  to  the  other,*  but  inasmuch  as 
heirship  is  peculiarlj^  a  creation  of  the  legislature,  it  has  the 
power  to  make    a   surviving   husband  or  wife,  as  well  as  a 

^  Consult  Ross  v.  Ross,  129  Mass.  ^  Bucking-liam  v.  Jacques,  37  Conn* 

243;    Sewal  v.  Roberts,    115   Mass.  402;   Curren  v.  Taylor,  19  Ohio,  36; 

262;  Keegan  v.  Geraghty,  101  111.  26.  Cramer's  Appeal,  43  Wis.  167;    Ry- 

2  Campbell  v.  Ware,  27  Ark.  65;  an  p.  Andrews,  21  Mich.  229;  Whee- 

Wheeler  v.  Clutterbuck,   52  N.    Y.  ler  v.  Clutterbuck,  52  N.  Y.  67. 

67;   Perkins  v.  Simmouds,  28  Wis.  ^Townsend  v.    Radcliffe,    44    111. 

90.  446. 


DESCENTS.  503 

cliild,  an  heir,  and  this  has  been  dircctlj'-  or  indirect!}"  acconi- 
plislied  in  a  number  of  the  States/  But  further,  the  right  of 
dower  has  been  radically  changed  in  a  few  States,  so  that  in- 
stead of  the  use,  during  life,  of  a  portion  of  the  husband's 
estate,  the  fee  to  a  specific  quantity  vests  absolutely  in  the 
widow  u}"»on  his  death,  and  though  it  will  require  no  small 
amount  of  astute  reasoning  to  discover  wherein  such  proced- 
ure does  not  constitute  a  descent,  yet  the  courts  of  such  States, 
in  view  of  the  fact  that  the  statute  declares  that  she  shall  be 
"entitled,"  etc.,  have  decided  that  the  widow  does  not  take 
by  descent,  as  an  heir,  but  by  virtue  of  her  marriage  rela- 
tion, as  a  widow.^ 

§  13.  Coparceners.  Persons  to  whom  an  estate  of  inher- 
itance descends  jointly,  and  by  whom  it  is  held  as  an  entire 
estate,  are  called  coparceners.^  Formerly  in  England  the 
term  included  all  persons,  and  such  is  its  legal  signification 
in  America,  but  its  present  use  in  England  is  confined  to 
females.*  The  distinction  between  coparcenary  and  tenancy 
in  common,  is  virtually  abolished  in  the  United  States,  and 
the  general  rules  relative  to  tenants  in  common  have  the  same 
application  whether  the  common  property  be  derived  by  de- 
scent or  by  ])urchase. 

§  14.  What  Descends.  Everything  comprised  in  tlie  term 
"  lands,"  or  *' lands,  tenements  and  hereditaments,"  descends 
according  to  law  to  the  heirs,  and  tliese  terms  include  every 
estate,  interest  and  right,  legal  and  equitable,  whetlier  in  pos- 
session or  expectancv,  vested  or  contingent,  except  such  mat- 
ters as  may  be  determined  or  extinguished  by  the  death  of 
the  intestate,  leases  for  years,  and  estates  for  the  life  of 
another.* 

^   15.      How  Affected    by  Ancestral    Covenants.      llcirs   are 

'May   V.   Fletcher,    40   Ind.  577;  M  Kent  Com.  4G2;    2   Bou.  Inst. 

Dodge  V.  Beeler,  12  Kan.  .524;  Ring-  n.  17dl. 
honse  r.  Keever,  49  111.  470.  ''The  statute   usually  defines  the 

2  Brannon   v.   May,    42    Ind.  92;  subject  of  inheritance,  but  the  above 

May  r.  Fletcher,  40  Ind.  .577.  is  the  substance  of  ihc  statute  as 

^1  Bou.  Law  Diet.  363;  2  Black.  generally   enactinl.     And    see     Ge- 

Com.  187.  rard's  Titles,  oGli. 


504  ABSTRACTS   OF   TITLE. 

not  bound  by  the  covenant  of  tlieir  ancestors,  further  than 
the  real  estate  descended  to  them,  and  the  amount  of  their 
distributable  shares  of  their  ancestor's  personal  estate,^  but 
wliere  tlie  ancestor  conveyed  with  warranty,  hind  to  which  he 
liad  no  title,  or  in  which  he  liad  only  an  inferior  or  limited 
estate,  his  heirs  must  make  the  warranty  good,  if  they  have 
assets  by  descent  equal  to  the  value  of  the  land.^ 

§  16.  Liability  for  Ancestral  Debts.  An  heir  is  under  no 
legal  liability  to  discharge  the  debts  of  his  ancestor  from 
whom  he  takes  real  estate,  except  where  the  personal  estate 
of  such  ancestor  is  insufficient  to  pa}'  same,*  and  credit^^rs,  in 
the  first  instance,  must  resort  to  the  personal  representatives, 
before  seeking  satisfaction  of  the  heirs.*  After  having  accept- 
ed the  succession,  they  become  personally  liable  for  the  debts 
of  the  ancestor,^  but  only  to  the  extent  of  what  descends  to 
them  from  such  ancestor.® 

§17.  Creditors' Liens.  Even  though  the  title  may  be  per- 
fect in  the  person  asserting  same,  it  is  yet  liable  to  be  defeated 
b}'  sale  made  in  satisfaction  of  the  ancestor's  debts,  and  no  se- 
curity can  be  predicated  for  it  until  the  bar  of  the  statute  has 
intervened.  In  case  of  un probated  estates  the  full  period  of 
limitation  must  have  expired  before  a  purchaser  can  feel  rea- 
sonably certain  as  to  the  stability  of  his  title,'  while  in  case  of 

^  Holder  v.  Mount,  2  Marsh.  (Ky.)  Ann.    743.      The    debts  chargeable 

189.  upon  lands  descended  are  those  con- 

^Mdler  v.  Bled-oe,  61  Mo.  96.  tracted  by  the  decedent  owner,  not 

^McLean  v.  McBean,  74  111.  134;  those  incurred  by  his  representatives 
"Woodfin  V.  Anderson,  2  Tenn.  Ch.  in  the  course  of  administration:  A'.- 
331.  Though  customary  it  is  not  len  v.  Poole,  54  Miss.  328;  Porter- 
accurate  to  say  that  lands  de?:cending  field  v.  Taliaferro,  9  Lea  (Tenn.),  242. 
to  heirs  are  charged  with  the  debts  *  Payson  v.  Hadduck,  8  Biss.  (C. 
of  the  ancestor.  The  lands  are  lia-  Ct.)  293;  Williams  v.  Ewing,  31 
ble  only  to  be  charged  with  the  pay-  Ark.  229;  Branger  v.  Lucy,  82  111. 
uient  of  debts  upon  a  deficiency  of  91;  Outright  v.  Stanford,  81  111.  240. 
personal  assets;  and  this  right  may  'There  are  in  general  no  express 
be  lost  by  delay:  Bishop  v.  O'Conner,  statutes  of  limitation  within  which  a 
69  111.  431.  lien   may  be  enforced  by  creditors 

*  Mix  V.  French,  10  Heisk.  (Tenn.)  against  heirs,  yet  it  would  seem,  by 

377.  analogy  to  the  liens  of  judgments 

^  Succesoion   of  Bougere,   28  La.  and   the  limitation  for  entry   upon 


DESCENTS. 


605 


probated  estates,  a  shorter  period  is  required.  The  limit  to 
the  time  when  application  can  be  made  by  creditors  to  sell  the 
lands  of  the  decedent,  is  variously  fixed  at  from  two  to  three 
years  from  the  ^rranting  of  letters  of  administration.  During 
this  period  the  land  remains  subject  to  J^ale,  in  case  of  a  defi- 
ciency of  jDersonal  assets,  not  only  in  the  liands  of  the  heirs, 
but  of  every  subsequent  purchaser,'  and  the  title  made  at  such 
sale  will  be  paramount  to  all  titles  made  by  or  through  the 
heirs.^  There  is  no  prohibition  to  the  alienation  of  the  land 
before  the  ex])iration  of  the  prescribed  period,  f()r  the  heir  may 
sell  and  conve}'  at  any  time  after  the  death  of  the  ancestor,  but 
if  he  should  convey  before  tlie  ex])iration  of  that  period,  the 
lands  pass  subject  to  the  power  of  the  ])robate  court  to  order 
a  sale  for  tlie  payment  of  debts,  which  is  a  kind  of  statutory 
lien  running  with  the  land.  After  the  expiration  of  the  stat- 
utory period,  the  power  of  the  probate  court  ceases;  the  land 
is  discharged  from  the  lien;  and  the  heir  may  sell,  and  bona 
fide  purchasers  will  take  the  estate,  freed  and  discharged  from 
the  debts.^ 

§  18.  Equitable  Conversion.  The  succession  of  the  heir 
may  also  be  defeated  by  what  is  known  as  equitable  conver- 
sion, as  where  the  ancestor  had  made  a  valid  contract  of  sale 
but  had  died  before  its  consummation  by  deed.  In  such  a 
case  equity  will  intervene,  on  the  familiar  principles  hereto- 
fore shown.*     In  the  event  just  noted,  the  purchase  money  ac- 


liincl,  that  the  statutory  period  pro- 
vided in  those  cases  should  bar  such 
lien.  The  policy  of  the  hiw  is,  re- 
pose and  security  of  titles  and  estates 
against  dormant  claims:  McCoy  v. 
Morrow,  18  111.  519. 

1  Hyde  v.  Tanner,  1  Barb.  79;  Hill 
V.  Treat,  67  Me.  501;  McCoys.  Mor- 
row, 18111.519. 

2  Meyer  v.  McDougal,  47  111.  278. 
The  same  is  equally  true  of  devisees: 
Hyde  v.  Tanner,  1  Barb.  79.  But 
where  the  creditor  proceeds  directly 
agair.st  the  heir,  if  the  real  estate 
has  been  sold  by  such  heir  in  good 


faith,  it  would  se"ni  that  it  can  not 
be  sold  under  a  judgment  against 
him;  but  the  creditor  must  satisfy 
his  judgment  out  of  other  property 
of  the  heir  to  the  extent  of  the  value 
of  the  land  so  aliened:  Vansyckle  r. 
Richardson,  13  111.  171. 

« Collamore  v.  Wilder,  19  Kan.  67; 
Sevier  v.  Gordon,  29  La  Ann.  440; 
Hyde  v.  Tanner,  1  Barb.  79.  This  is 
a  matter  of  statutory  regulation;  con- 
sult local  statutes. 

*  See  Ch  p.  XV 111,  Agreements  for 
Conveyances. 


50 G  ABSTKACTS    OF    TITLE. 

ernes  to  the  cxocntoi'  or  administrator,  and  not  to  the  heirs/ 
wliile,  on  the  contrary,  if  the  ancestor  had  pnrchased  land  bnt 
received  no  conveyance,  the  title  snbsequeiitly  acquired  would 
inure  to  the  heirs, even  though  the  administrator  paid  the  pur- 
chase money, 

§  19.  Proof  of  Heirship.  Title  by  inheritance  or  succes- 
sion accrues  only  to  the  issue  of  lawful  wedlock,^  and  can  be 
asserted  only  by  the  person  or  persons  who  can  bring  them- 
selves within  the  line  of  succession  provided  by  the  statute. 
To  successfully  assert  the  title  therefore  it  is  necessary  for  the 
heir  to  prove:  1,  the  death  of  the  ancestor,  and  lawful  seizin  in 
him  of  the  subject-matter  of  the  title  at  the  time  of  such  de- 
cease; 2,  the  marriage  of  his  parents;  and  3,  proof  of  his  legiti- 
macy or  a  lawlul  ademption.  These  three  points  satisfactorily- 
established,  the  law  will  invest  him  with  title  to  such  portion 
of  the  ancestor's  estates  as,  under  the  statute,  he  is  entitled  to 
take.^  In  contests  concerning  the  succession,  these  matters 
are  proved  in  a  variety  of  ways  but  mainly  upon  the  estab- 
lished precedents  of  the  common  law,  which  will  be  discussed 
in  succeeding  paragraphs.  The  difficulties  wliich  may  attend 
the  judicial  determination  of  questions  of  heirship,  including 
the  ascertaining  who  are  entitled  to  succeed  to  an  intestate's 
real  estate,  does  not  seem  to  be  provided  for  by  statute  in  a 
majority  of  the  States,  though  an  attempt  has  been  made  in 
some  to  provide  means,  by  a  proceeding  in  probate,  for  ob- 
taininjr  presumptive  evidenceof  thefacts,  as  to  the  persons  who 

^  The  heirs  in  such  a  case  would  to  lawful  children  only,  and  does  not 

take  the  legal  title  by  descent,  but  do  away  with  the  common  law  rule, 

only  as  trustees:  Johnson  v.  Corbett,  wh  ch  prevents  illegitimate  children 

11   Paige,    265;  Moore  v.  Burrows,  from  inheritmg  anything:  Blacklaws 

34  Barb.    173;    Smith  v.  Smith,  55  v.  Milne,  82  111.  505. 
111.  204;  Eaton  v.  Bryan,  18  111.  525.  ^  To  prove  heirship  in  a  collateral 

2  It  is  a  rule  of  construction  that,  line,  a  party  must  show  the  descent 

jjr/»m /rrc(V,  the  term  "children"  of  himself  and  the  person  last  seized, 

means    lawful    children,    and     the  from  some  common  ancestor,  and  the 

statute  of  descents,    by  which  the  extinction  of  all  those  lines  of  descent 

property  of  an  intestate  is  made  to  which  would  claim  belbre  him :  Eil- 

descend  to  and  among  the  children  merson  v.  White,  29  N.  H.  482. 
and  their  descendants,  has  reference 


DESCENTS.  507 

constitute  the  lieirs  at  law  of  a  deceased  person.*  Ordinarily 
the  meagre  proof  offered  hy  the  administrator,  upon  the  ap- 
plication fur  letters  of  administration,  is  the  onlj' record  proof 
of  heirship  available  in  the  compilation  of  an  abstract,  and 
though  the  decree  or  adjudication  may  find  the  persons  men- 
tioned in  his  petition  the  oidy  heirs  at  law  of  the  dece- 
dent, it  is  not  conclusive  on  that  point,  and  is  done  rather  for 
the  purj)0se  of  fixing  the  right  of  the  joerson  appointed  to  ad- 
minister, and  for  his  guidance  in  the  distribution  of  the  per- 
sonaltj",  than  to  establish  the  claims  of  the  heirs  to  the  realty 
through  descent. 

§  20.  Proof  of  Death.  To  establish  the  claim  of  the  heir 
it  is  necessary  to  jjrove  the  death  of  the  ancestor,  and,  in  the 
absence  of  proof,  all  the  presumptions  are  that  an  individual 
is  still  living.^  For  certain  purposes  an  absence  of  seven  yesLVS 
without  tidings  has  been  held  to  create  a  presumption  of 
death,*  but  this  ])resumption  is  repelled  by  verj'  slight  facts 
and  circuiiistances  and  courts  have  refused  to.  entertain  the 
presumption  after  an  interval  of  absence  and  silence  of  twenty 
years,  where  tlie  circumstances  rendered  it  improbable  that  a 
party,  if  alive,  would  have  communicated  with  her  friends.* 
"  Scarcely  any  lengtli  of  time,"  observes  a  Canadian  writer,* 
"will  be  sufficient  to  compel  an  unwilling  purchaser  to  take  a 
title  de])ending  un  such  a  presumption  of  death,  unless  made 
with  reference  to  the  age  of  the  party  said  to  be  deceased; 
and  if  the  party  whose  death  is  asserted  was,  when  last  heard  of, 
very  young,  the  period  must  be  that  beyond  which  human  life 
does  not  commonly  extend."     Instances  simihxr  to  that  cited 

J  N.   Y.   Civ.  Co.    ri-oc.  §    2Go4.  2  Mosheimer  v.  Ussleman,  36  TU. 

This  is  done  by  petition  describing  232;  Whiting  v.  Nicholl,  4G  111.  230. 

the  real  estate;  setting  forth  the  facta  ^Whiting  v.  Nicholl,  46  III.  230; 

upon  which   the  jurisdiction  of  the  Dart  on  Vend.    315;     Hubback    on 

court  depends;  the  interest  of  the  Sue.  (Eng.)  179;     Newman  v.  Jen- 

potitioners    and    other    heirs;     and  kins,  10  Pick.    155;  Wambough  v. 

praying   for    a  decree    establishing  Scheldt,  1  Pa.  229. 

the  rights  of  inheritance;  but   this  *  Taylor  on   Titles,  65;  Bowden  v. 

proceeding  does  not  atl'oct  the  right  Henderson,  2  Sm.  &  G.  (Eng.)  560. 

or  interest  of  a  person  n.taparty  *  Taylor  on  Titles,  65;    citing  Lee 

thereto.  on  Abstracts,  467. 


508  ABSTRACTS   OF   TITLE. 

by  tlic  writer  just  quoted  must,  however,  be  of  very  rare  occur- 
rence in  the  United  States  as  other  agencies,  arising  from  tax- 
ation, statute  of  limitations,  etc.,  might,  under  proper  circum- 
stances, validate  and  make  good  a  title  derived  by  succession 
even  though  defective  in  itself  and  founded  upon  insufficient 
evidence  of  ancestral  death.  The  ordinary  evidence  of  death 
in  England  consists  of  entries  in  parochial  registers,  or  certi- 
iied  copies  of  same,  and  declarations  as  to  the  identity  of  the 
parties;  tliese  registers,  however,  do  not  seem  to  be  evidence 
of  the  time  of  death,  and  disclose  the  fact  only  inferentially, 
as  by  showing  that  it  must  liave  occurred  before  the  date  of 
burial,  of  which  fact  the}"-  seem  to  be  evidence.^  Such  evi- 
dence  has,  however,  been  received  in  the  United  States,^  par- 
ticularly in  proving  pedigrees,  but  is  of  doubtful  character, 
unless  aided  by  statute.  To  remed}'  the  defects,  inaccura- 
cies, omissions,  etc.,  of  parish  registers,  as  well  as  to  provide 
some  tangible  evidence  of  births,  marriages  and  deaths,  for 
the  large  class,  who  would  not  be  affected  by  such  registers  in 
a  country  where  a  complete  disassociation  of  church  and 
State  is  observed,  many  of  the  States  have  provided  a  special 
registration  of  such  facts  in  the  permanent  archives  of  the 
counties. 

§  21.  Continued — Official  Registration.  In  States  where 
a  system  of  official  registration  prevails,  all  persons  or  socie- 
ties solemnizing  marriages;  all  physicians,  or  other  profes- 
sional persons,  under  whose  care  a  birth  shall  occur,  or  in  case 
of  no  professional  attendance,  then  the  mother;  and  all  per- 
sons who  shall  be  in  attendance  professionally  at  the  time  of 
the  death  of  any  person,  are  required  to  transmit  to  the  re- 
cording officer  of  the  county  a  statement  under  their  hands 
of  the  facts  attending  such  marriage,  birth  or  death,  and  a 
register  of  the  facts  so  returned  is  kept  by  such  officer.  A 
transcript  of  such  registry  is  furtlier  required  to  be  transmit- 
ted semi-annually  to  the  secretary  of  State  to  be  by  him  pre- 

'  Dart  on  V.  &  P.  *176.  plessis  r.  Kennedy,  6  La.  231;  Jack- 

^  Hyam  v.   Edwards,    1    Dall.  2;      son  v.  Bonebam,  15  Johns.  226. 
Lewis  V.   Marshall,  6  Pet.  470;  Du- 


DESCENTS.  609 

served  at  the  scat  of  government.'  This  record,  when  made 
and  kept  pursuant  to  law  is  received  as  presumptive  evidence 
of  the  marriage,  birth  or  death  so  recorded.  When  no  pro- 
bate proceedings  have  been  had,  tills  method  of  proof,  if  avail- 
able, should  be  resorted  to,  to  show  the  death  of  the  ancestor, 
as  well  as  the  birth  and  legitimacy  of  the  heir  claimant.  The 
facts  may  be  stated  in  this  manner: 


Proof  of  Death 

George  If  illiams. 
Doc.   200 a  10. 


Certificate  hy  Wm.  If.  J^arr, 
M.  D. 

Dated  March  10,  1S83. 
Recorded  March  11,  18S3. 
Death  Register,  ''A,'' page  20. 
Certifies  that  George  Williams,  white,  male,  aged  fifty  five 
years,  hy  occupation  a  carpenter,  died  Mar.  8,  1883,  at  the 
town  of  Pleasant  Prairie,  Kenosha  County,  Wisconsin,  of 
BrighVs  disease  of  the  kidneys,  and  was  huried  in  the  ^'■Ger- 
man Roman  Catholic  Cemetery.''^ 

That  said  deceased  was  horn  Mar.  8,  1828. 
That  the  name  of  the  father  of  said  deceased  vjas  Henry 
Williams,  and  of  his  mother  Jane  {Flynn)  Williams,  and 
that  the  name  of  said  deceased'' s  wife  is  Mary  {Jones)  Will- 
iams.^ 

§  22.  Continued  Probate  of  Death.  Before  adininlstra- 
tion  is  granted  upon  the  estate  of  any  person  alleged  to  have 
died  intestate,  satisfactory  proof  is  always  required  to  be 
made  before  the  probate  court,  to  whom  application  for  tliat 
purpose  is  made,  that  the  person,  in  whose  estate  letters  of 
administration  are  requested,  is  dead,  and  died  intestate. 
This  is  accomplished  ordinarily  by  an  affidavit  or  veriticd 
petition,  made  b}'  tiie  person  applying  for  such  letters,  or  by 
some  other  credible  person,  and  forms  the  basis  of  all  subse- 
quent proceedings  in  such  court. 

'This  matter  is  local  and  statutory.  fiml  immediate  adoption  in  all  States 
The  stateraent  above  made  is  oom-  in  which  it  does  not  now  prevail, 
piled  from  the  code  of  the  State  of  ^This  serves  to  identity  the  de- 
Wisconsin.  As  atfecting  real  estate  ceased  with  reasonable  certainty, 
by  descent,  it  is  a  most  wise  ami  and  precludes  the  necessity  of  afli- 
salutary  measure  and  one  that  should  davits  or  declarations  of  identity. 


510  ABSTRACTS    OF    TITLE. 

§  23.  Proof  of  Birth  and  Legitimacy.  Certificates  of  the 
marriage  of  the  parents  and  the  baptism  of  the  person  pro- 
posed witliin  a  reasonable  time  after  the  marriage,  are  ad- 
mitted in  England,  and  it  would  seem  in  Canada,  as  full  and 
ample  evidence  of  legitimac_y,  without  any  proof  of  the  iden- 
tity of  the  parties,^  and  such  evidence  in  a  contest  regarding 
the  succession  would  also  be  received  in  the  United  States, 
while  for  many  pur])oses,  in  the  absence  of  better  evidence, 
general  reputation,^  proof  of  cohabitation,^  admissions  and  dec- 
larations,* would  be  competent.  An  abstract,  as  it  is  com- 
piled in  this  country,  does  not  contain  evidence  of  this  char- 
acter, and  where  it  is  desirable  to  obtain  information  relative 
to  heirship,  and  no  decree  has  been  made  in  any  matter  re- 
specting same,  and  no  system  of  official  registration  of  births 
and  marriages  exists,  an  inquiry  in  pals  must  be  made.  "Where 
official  returns  are  made  and  kept  pursuant  to  law  such  re- 
turns, or  the  record  thereof,  would  furnish  jprlma  facie  evi- 
dence of  the  desired  facts,^  while  the  probate  of  the  estate, 
including  distribution,  assignment  of  dower,  etc.,  would  also 
be  evidence  of  the  same  character. 

§  24.  Validity  of  Descents.  Titles  depending  upon  descent 
are  viewed  by  our  English  brethren  with  great  disfavor  and 
ranked  amongst  the  poorest  that  can  be  offered,  or  the  weak- 
est that  can  be  asserted.  Such  titles  are  always  to  be  viewed 
with  jealousy,  observe  their  leading  writers,  and  if  depend- 
ent upon  several  successive  descents  are  scarcely  marketa- 
ble.^ In  a  limited  sense  this  is  also  true  of  title  by  descent  in 
the  United  States,  and  a  purchaser  would  be  justified  in  re- 
fusing to  take  many  titles  that  might  be  offered  from  parties 
claiming  by  descent.     This  almost  invariably  follows  in  cases 

\  1  Taylor  on  Titles,    63;   Hnbback  State  &  Armington,  25  Minn.  29. 
on  Sue.  65.      A  certificate  of  baptism  *  Betsinger  v.  Chapman,  88  N.  T. 

is  no  evidence  of  the  exact  age  of  a  487;  Proctor  v.   Bigelow,  38  Mich, 

party;   it    is  good  evidence  of  his  282;  111.  Land  &  Loan  Co.  ».  Bonner, 

legitimacy,  but  not  of  his  age:  Gov.  75  111.  315. 
Con.  Ev.  28L  ^  gtate  v.  Potter,  52  Vt.  33. 

^Fenton   v.    Reed,    4  Johns.  52;  « Atkinson  on    Titles,    374;   Hub- 

Brice's  Estate,  11  Phila.  (Pa.)  98.  back  on  Sue.    (Eng.)  71;  Taylor  on 

3  Clayton  v.  Wurdell,  4  N.  Y.  230;  Titles  (Canada),  61. 


DESCENTS.  511 

of  improbated  estates,  for  no  title  can  be  more  nnccrtain  and 
insecure,  and  scarce!}'  any  length  of  time,  in  the  absence  of 
other  evidence,  would  be  sufficient  to  furnish  a  reasonable 
presumption  of  death  and  the  exclusion  of  the  rights  of  other 
lieirs  who  niiirht  possess  valid  claims  npon  the  property/ 
Proof  that  certain  persons  are  the  only  children  who  survived 
their  father  does  not  establish  the  fact  that  they  are  the  only 
lieirs,  as  he  may  have  grandchildren  by  deceased  children,^ 
and  hence  it  is  necessary,  in  some  instances,  that  additional 
information  to  that  furnished  by  the  proceeding's  in  probate, 
be  also  procured  to  fully  establish  an  asserted  right.  The 
statnteof  limitations  will,  however,  furnish  a  strong  re-enforce- 
ment to  a  doubtful  title  by  descent,  and  serve  to  effectually 
settle  many  of  the  questions  that  otherwise  would  render  the 
title  so  undesirable. 

§  25.  Abstract  of  Descents.  Under  the  English  system  of 
abstracting,  a  descent  is  shown  by  a  pedigree,  supported  by 
certificates  of  marriage,  births  and  deaths,  inserted  in  the 
order  of  their  date.  If  the  certificates  can  not  be  procured 
(which,  from  the  loss  or  imperfect  state  of  registers,  and  other 
circumstances,  is  sometimes  the  case),  substitution  is  made,  of 
entries  in  the  Royal  College  of  Arms,  in  family  bibles  or 
books,  on  tomb  and  grave  stones,  and  the  solemn  declarations 
of  family  solicitors,  tenants,  workmen,  and  parties  acquainted 
with  circumstances  and  facts,  as  well  as  such  evidence  of  the 
seizin  of  the  different  parties,  shown  by  the  pedigree,  to  be 
entitled,  as  can  be  adduced;  for  which  evidence  old  leases  of 
the  ])ro])crty,  land  tax,  and  parochial  assessments,  arc  referred 
to.'  Pedigrees  may  be  used  to  a  ver}' limited  extent  in  the 
eastern  States  and  are  sometimes  alluded  to  by  writers  on 
conveyancing,  but  in  the  west  they  are  practically  unknown 
and  seldom  if  ever  resorted  to,  while  authentic  information  of 
the  facts  to  which  a  pedigree  relates  is  extremely  difficult  of 
ascertaining,  and    the    sources   as    mentioned    above    would 

'A    deceased    person    is    always  *  Skinner  r.  Fnlton,  39  111.  4S1. 

presumed   to  have    left  heirs:   Pile  "^Moore  on  Abst.  44. 

V.  McBratney,  15  111.  314. 


512  ABSTRACTS   OF   TITLE. 

liardly  be  considered  sufficiently  certain  by  the  average  attor- 
ney/ 

Family  records,  when  shown  to  have  been  regnlarly  com- 
piled, are  not  without  weight  in  the  United  States,  and  are 
frequently  resorted  to  for  proof  of  heirship  in  the  adminis- 
tration of  estates;  but  while  they,  with  other  evidence,  will  be 
received  by  courts  to  prove  pedigree  and  establish  rights  of 
succession,  they  do  not  constitute  such  evidence,  save  as  they 
appear  in  court  proceedings  by  way  of  recital,  as  is  re(pired 
in  compiling  an  abstract,  and  examiners  as  a  rule  do  not,  and 
as  a  matter  of  fact,  should  not,  attempt  to  introduce  them  or 
any  other  matter  strictly  inpais.  A  judicial  determination 
in  an  action  brought  by  adverse  claimants,  or  in  a  proceeding 
in  rem  to  determine  the  rights  and  apportion  the  interests  of 
the  parties  before  the  con rt,  would  be  proper  record  evidence 
of  descent  and  right  of  succession,  while  the  proceeding  had  in 

^  As  a  matter  of  curiosity,  rather  than  for  any  real  utility,  the  following 
abstract  of  an  English  pedigree  is  inserted.  The  object  is  to  show  title 
by  descent  in  Thomas  Noakes: 

Ralph  Noakes  was  the  grandfather  of  Thomas  Noakes,  Esq.,  of  Cliff 
Hall  (the  mortgagor),  as  will  bo  seen  by  the  subjoined  pedigree  {ex  parte 
patei-Ho)  copied  from  one  in  his  possession,  and  kept  by  his  family.  It  is 
also  shown  by  different  entries  found  in  the  family  registers,  now  likewise 
in  his  possession.  The  fact  of  his  being  the  direct  lineal  heir  of  said  Ralph 
Noakes  is  also  confirmed  by  entries  at  the  Royal  College  of  Arms. 

And  the  following  is  a  pedigree  and  entries  referred  to: 

Raloh  Noakes=Ann  Freke. 


Richard=Sarah  Hart.  Ann=John  Brown. 

ob.  ob. 


Thomas=01iva  Jones.  Susan=James  Old.     Jane. 

I  , * N    ob.  a;ti  18. 

Thomas=Charlotte  Smart.  Samuel,  Eliza,  Thomas. 

Thomas,  and  six  other  children. 

"  Feb.  10,  1740]  Richard,  only  son  of  Ralph  Noakes,  was  born  at  Cliff 
Hall,  at  3  m  the  morning." 

"  April  3.  1762]  Thomas,  only  son  of  Richard,  born  at  Cliff  Hall  on  Tues- 
day the  3d  of  April,  1762,  at  12  o'clock  at  night." 

"June  19,  1784]  Thomas,  son  of  Thos.  Noakes  and  Charlotte  Smart,  born 
at  Cliff  Hall,  at  9  iu  the  morning." — Moore  on  Abst.  58. 


DESCENTS.  513 

prol3ite  are  evidence  of  the  same  nature.  These  matters 
thcretbre,  innst  always  be  noted  and  appropriately  exhibited, 
and  with  a  very  few  exceptions  will  furnish  sufficient  data, 
and  be  snfhciently  conclusive  of  the  facts  of  death  and  heir- 
ship, to  warrant  the  belief  that  the  persons  so  found  to  be  the 
heirs  of  the  decedent  are  such  heirs  and  the  only  ones  enti- 
tled to  participate  in  the  distribution  or  share  in  the  succes- 
sion. 

§  26.  Continued — Probate  Proceedings.  The  nsnal  and 
ordinary  method  of  showing  a  descent  in  the  United  States  is 
by  an  abstract  of  the  settlement  of  decedent's  estate.  This 
should  disclose  the  jurisdiction  of  the  court,  appointment  of 
administrator,  proof  of  heirship,  and  adjudication.  This  is 
sutficient  to  show  the  descent,  but  in  order  that  the  title  of 
the  heirs  may  not  be  obscured  by  latent  defects  or  creditors' 
liens,  the  inventory,  payment  of  claims,  and  final  report  and 
discharge  of  the  administrator  should  also  be  shown.  The 
degree  of  detail  is  optional  with  the  examiner,  provided  the 
jurisdiction  be  made  to  apj)ear  and  an  apparent  regularity  be 
shown  in  all  of  the  subsequent  steps.  The  following  is  otiered 
as  a  specimen  of  a  very  simple  settlement: 

111  Piy-bate  Courts  Cook  County^  Ills. 
In  the  matter  of  the  estate  \      Descent. 

of  \      Case  No.  2,000,  in  Box  135. 

Julia  A.  Mason.  )      Petition  of  Anna  Ilasl'eUfor 

letters  of    ad  ministration,  fled 

May  10,  1SS3.     Record  U,  x^j.  21. 

Eepreseiits  that  Julia  A.  Mason  died  intestate,  Aug.  2, 
1882,  leaving  property  and  effects  in  Cook  County,  Ills.,  as 
follovjs,  to  loit:  [describe  the  reed  estate]  and  leaving  her 
surviving,^  Anna  Haskell  {wife  of  Charles  Haskell)  and 
Walter  A.  Mason,  her  only  heirs  at  law. 

'Thii?  fact,  if  properly  proved,  will  as  the  intestate  may  have  had  chil 

be  sufficient  to  establish  the  heirship  dren  who  did  not  sui  vive  him,  but 

of  the  persons  named,    but  is  not  who  in  turn  may  have  left  children 

conclusive,    nor  does  it  prove  that  entitled  to  a  representation:  Skinner 

the  persons  named  are  the  only  heirs  v.  Fulton,  39  III.  484. 
entitled  to  share  in  the  succession, 
33 


514  ABSTRACTS   OF    TITLE. 

Sworn  to  May  10,  1SS3. 

Letters  of  administration  issued  to  Anna  Haslcell,  dated 
May  10,  1883. 

Bond  in  su7n  of  $6,400.00  loith  sureties  filed  and  aj)- 
f  roiled  May  10,  1883. 

Warrant  to  appraisers  issued,  dated  May  10,  1883. 

Proof  of  heirship  entered  May  10,  1883. 

The  court  finds  from  the  evidence  produced  in  open  court, 
that  Julia  A.  Mason  died  Aug.  2,  1882,  leaving  her  surviv- 
ing Walter  A.  .Mason,  her  son,  and  Anna  Haskell  {wife  uf 
diaries  Haskell)  her  daughter,  her  only  next  of  kin. 

Proof  of  publication  and  posting  of  notices  for  adjudi- 
cation filed  June  1,  1883,  and  approved  July  16,  1883. 

Adjudication  ordered  July  16,  1883. 

§  27.  Settlement  without  Administration.  It  is  compe- 
tent for  all  the  heirs  to  an  estate,  if  of  age,  to  settle  and  pay 
the  debts  of  the  estate,  and  to  make  partition  of  the  prop- 
erty among  themselves,  without  any  administration;  and 
neither  creditors  nor  debtors  of  the  estate  have  a  right  to 
complain.^  It\  in  pursuing  this  course,  they  sell  portions  of 
the  property  and  make  proper  application  of  the  proceeds  to 
the  payment  of  the  debts,  their  acts  are  entitled  to  full  faith 
and  credit,  as  though  they  acted  in  the  capacity  of  adminis- 
trators or  executors.^ 

§  28.  Escheat.  The  Last  taker,  under  the  statute  of 
descents,  is  tlie  State.  But  the  State  is  not  to  be  deemed  an 
heir  within  the  ordinary  meaning  of  the  term,  and  takes,  not 
as  an  lieir,  bat  rather  because  there  are  no  heirs.^ 

1  Taylor  v.   Phillips,  30  Vt.  238;      374. 
Babbitt  v.  Bowen,  32  Vt.  437;  and  2  Morris  v.  Halbert,  36  Tex.  19. 

see  Brasbear  v.  Conner,  29  La.  Ann.  ^  State  v.  Ames,  23  La.  Ann.  69. 


CHAPTER  XXXL 


ADVERSE  TITLE. 


§  1.     Adverse  titles,  generally  con-  §  9.  Tacking'. 

sidered.  10.  Possession  as  notice. 

2.  Adverse  conveyances.  11.  Who    may    acquire    adverse 

3.  The  character  of  adverse  pos-  title. 

session.  12.  Remainder-men. 

4.  Color  of  title.  13.  Reversioners. 

5.  Adverse  possession  under  color  14.  Tenants  in  common. 

of  title.  15.  Persons  under  disability. 

6.  Constructive  possession.  16.  Adverse  rights  as  against  the 

7.  Adverse  possession  from  user.  State. 

8.  Naked     possession     without  17.  Effect  of  adverse  possession. 

claim.  18.  Proof  to  support  title. 

§  1.  Adverse  Titles,  Generally  Considered.  Ill  examina- 
tions of  title  it  is  not  nncoininon  to  find  two,  or  even  three, 
conflicting  claims  of  title  evidenced  by  deeds  or  other  matter 
of  record,  while  inquiries  in  j^o-'-s  may  further  disclose  claims 
of  title  and  ownership  founded  upon  actual  occu]»ation  and 
possession,  under  claims  of  right  resting  upon  nnrecorded 
deeds,  undisclosed  descents,  or  prescriptive  user.  In  some 
cases  the  adverse  titles  have  a  common  origin  and  all  flow 
from  the  same  source;  in  otliers  they  originate  independently 
through  execution,  judicial  or  tax  sales,  or  by  reason  of  inde- 
pendent conveyances  from  individuals.  The  questions  raised 
by  these  conflicting  claims  are  numerous  and  sometimes  difli- 
ciilt  of  solution,  and  are  among  the  most  perplexing  incidents 
upon  whicli  counsel  are  obliged  to  pass. 

§  2.  Adverse  Conveyances.  Under  tills  head  are  grouped 
all  the  conveyances  emanating  from  indepcink'nt  sources  and 
not  connected  witli  the  original  grantur  or  foriniuu-  a  ]iart  of 
the  regular  course  of  title.  Tliese  convevaiKjes  inav  e-onsist 
of  tax  deeds  and  resulting  conveyances  which  liave  nol  been 

(515) 


516  ABSTRACTS    OF   TITLE. 

mero^ed  into  the  common  ownership;  an  assertion  of  title  by 
one  havinf^  no  record  evidence;  and  deeds  which  by  erroneous 
descriptions  do  not  convey  the  property  intended,  but  cover 
other  and  entirely  different  parcels.  It  is  the  practice  of  ex- 
aminers to  arrange  these  deeds  as  an  appendix  to  the  chain, 
setting  them  out  under  the  classified  head,  "  adverse  convey- 
ances," and  prefixing  to  them  the  statement,  "  we  also  find." 
Where  an  adverse  title  appears  of  record,  followed  by  mesne 
conveyances,  and  eventually  merging  into  the  original  title, 
they  constitute  part  of  the  chain  and  are  shown  in  the  regu- 
lar course.  In  cases  of  this  kind  the  better  way  is  to  trace 
the  title  from  the  original  grantor  to  the  person  in  whom  a 
perfect  and  unembarrassed  title  is  found;  here  stop  and  sepa- 
rate what  follows  by  a  broad  dash,  or,  if  desired,  a  prefatory 
note,  then  show  the  tax  deed  or  other  initial  adverse  convey- 
ance and  tlie  conveyances  resulting  therefrom,  until  title  is 
found  in  the  person  proposed.  Xow  separate  the  chain  as 
before,  and  the  next  deed  will  commence  a  reunited  and  per- 
fect chain.  Isolated  adverse  conveyances,  as  has  been  stated, 
are  frec|uently  the  result  of  error,  and  are  often  followed  by 
curative  deeds  which  demonstrate  same.  When  the  examiner 
has  the  necessary  information  and  can  supply  same,  an  ex- 
planatory note  should  follow  the  deed,  thus: 

N^ote:  We  find  recorded  in  Booh  500,  page  260,  a  deed  he- 
tween  the  same  parties,  and  hearing  same  date  as  the 
foregoing,  conveying  property  in  the  northeast  quarter 
of  Sec.  10,  T.  2,  N.  R.  23,  E.,  and  wherein  it  is  recited 
that  said  deed  is  given  to  correct  an  error  in  the  descrip- 
tion of  land  conveyed  hy  deed  recorded  in  Booh  JfBO, 
page  359  {shoion  as  No.  25  of  this  examination;  or, 
shown  alove.) 

The  foregoing  sugge5tion  is  considered  the  better  way  to 
treat  adverse  conveyances,  particularly  when  it  can  not  be 
demonstrated  that  the  adverse  conveyance  is  the  result  of  er- 
ror, and  not  the  assertion  of  an  independent  title,  yet  exam- 
iners  of   undoubted   standing   and   ability    have   frequently 


ADVERSE   TITLE,  517 

deemed  an  explanatory  note,  without  any  exhibition  of  tlie 
adverse  deed,  sufficient  for  the  purposes  of  the  abstract. 
Should  the  latter  method  be  considered  desirable,  a  statement 
similar  to  the  following  may  be  made: 

Adverse  Conveyances. 


In  BooJc  185,  page  537 ^  is  recorded  a  deed  from  John  II. 
Fellows  and  lo'ife  to  Lorenzo  Dow,  jpurporthifj  to  con- 
vey land  described  as:  Beginning  at  the  southeast  cor- 
ner south  of  the  Indian  Boundary  Line  of  southeast 
quarter  of  Section  35,  Toion  Jfi,  Range  13;  thence 
north  on  east  line  of  said  quarter  section  J{0  rods;  thence 
west  160  rods;  thence  south  Jfi  rods;  thence  east  IGO 
rods,  containing  Ifi  acres;  and  in  Booh  J^O  of  Mort- 
gages, page  519,  is  recorded  a  mortgage  from  said  Lo- 
renzo Dow  to  James  Parton,  covering  same  premises; 
said  mortgage  is  released  on  margin  of  record.  Fellov^s 
owned  land  in  Section  35,  Town  41,  Range  13,  and  loe 
assume  that  said  deeds  hy  Fellows  and  Dow  were  in- 
tended to  convey  land  there  and  not  in  Section  35,  Town 
40,  Range  13,  where  he  had  no  interest  whatever. 

The  foregoing  example  is  given  to  show  the  methods  that 
can  be  and  are  sometimes  employed,  rather  than  as  a  prece- 
dent to  be  followed,  for,  although  the  conveyances  are  suffi- 
ciently identified  to  furnish  actual  notice  to  all  persons  perus- 
ing the  abstract  of  their  character  and  purport,  and  possibly 
sufficient  explanation  is  given  to  warrant  the  assumption  of 
the  examiner,  and,  in  the  instance  under  consideration,  the 
examiner  has  suiHciently  discharged  his  duty  to  relieve  him- 
self of  all  liability,  yet  the  practice  of  showing  positive  trans- 
actions by  notes, 'and  of  making  assumptions  witiiout  ex- 
pressed authorit}',  is  dangerous  and  often  misleading,  and  cal- 
culated to  involve  the  examiner  in  serious  complications. 
An}''  and  every  conveyance,  incumbrance,  lien  or  charge  which 
directly  or  by  just  imi)lication  affects,  imjxiirs  or  clouds  the 
title,  if  a  matter  of  record,  and  witliin  the  dates  comprising 
the  period  of  the  search,  should   bo   shown   afllrmatively  and 


518  ABSTRACTS   OF    TITLE. 

M'itliont  expression  of  opinion  as  regards  the  legal  effect  of 
the  instruments,  or  the  real  or  supposed  intention  of  the  par- 
ties, and  if  the  examiner  is  also  the  counsel,  let  the  abstract 
•M\d  the  opinion  be  separate  and  distinct  papers. 

§  3.  The  Character  of  Adverse  Possession.  It  is  a  well 
established  rule  that  a  possession,  to  be  adverse,  must  be  so 
open,  notorious  and  important  as  to  give  notice  to  parties 
that  ft  claim  of  right  is  intended  therebj^;  that  the  right  of 
tlie  true  owner  is  invaded  intentionally,  and  with  a  purpose 
to  assert  a  claim  of  title  adversely  to  his;  and  to  furnish  the 
basis  of  a  substantial  title,  must  extend  in  unbroken  con- 
tinuity over  the  period  prescribed  by  the  statute  of  limita- 
tions.' This  element  of  peaceful  continuity  is  perhaps  more 
distinctly  material  in  conferring  title  by  adverse  possession 
than  any  other,^  and  is  a  consideration  of  primary  impor- 
tance in  all  examinations.  A  statutory  distinction  is  made  in 
some  States  between  a  claim  of  title  founded  upon  some 
written  instrument  or  judgment,  and  an  actual,  contiTiued 
occupation  under  claim  of  title,  exclusive  of  any  other  right, 
but  not  founded  upon  any  written  instrument,  judgment  or 
decree;  and  the  period  of  occupancy  in  the  latter  case  must 
be  continued  much  longer  than  in  the  former.  Thus,  in  the 
first  instance,  the  title  may  become  perfect  and  indefeasible 
at  the  end  of  ten  years,  while  in  the  latter  the  period  of  legal 
memory  must  have  run  to  warrant  the  presumption  of  an 
original,  valid  entry,  and  the  loss  or  destruction  of  the  muni- 
ments that  establish  the  occupant's  right  to  the  soil.  The 
character  of  the  possession,  too,  may  be  vastly  different  under 
the  two  claims;  as,  in  the  first  instance,  a  partial  occupancy 
only  is  required,  such  partial  occupancy  drawing  to  it  con- 
structively the  possession  of  all  of  the  land  mentioned  in  the 

1  Carrol  v.  Gillion,    33    Ga.   539;  Roberts,  64  Ga.  370.     Possession  of 

Beatty  v.  Mason,  30  Md.  409;  Dixon  land  once   established  by  material 

V.  Cook,  47  Miss.  220;  Laramore  v.  acts  of  visible,  notorious  ownership, 

Minish,    43    Ga.    262;  Bowman  v.  must  be  presumed  to  continue  until 

Lee,  4S  Mo.  335.  open,  notorious,  adverse  possession 

^  Tyler   Adv.    Enj.   907;   Groft  v.  be  pi-oved  to  have  been  taken  by 

Weekland,  34  Pa.  308;  Williams  v.  another:  Clements  v.  Lampkin,   34 

Wallace,  78  N.   0.   354;   Shiels  v.  Ark.  598. 


ADVERSE    TITLE. 


619 


instrument  under  wliich  tlic  claim  is  made,  wliile  in  the 
latter  the  adverse  holding  extends  only  to  so  much  of  the 
premises  as  may  have  been  actually  occupied.^  Bat  in  either 
event,  to  constitute  a  bar  to  the  assertion  of  the  Iciral  title, 
the  j)ossession  must  be  hostile,^  and  not  a  mere  trespass,'  and 
must  also  be  visible,*  continuous,^  notorious,'  definite^  and 
inconsistent  with  the  claim  of  others,^  while  the  claim  of 
riirht  accompanying  such  possession  must  not  have  originated 
in  fraud.'  A  clandestine  entry  or  possession  will  never  serve 
to  set  the  statute  in  motion,  for  in  order  to  bar  the  true 
owner  from  asserting  his  title,  he  must  have  actual  or  con- 
structive notice  of  tlie  instrument  under  which  tlie  adverse 
claimant  enters,  or  knowledge,  or  the  means  of  knowledge, 
of  such  occupation  and  claim  of  right,'"  and  the  entry  must 
be  made  and  the  possession  continued  under  such  circum- 
stances as  to  enable  such  true  owner,  by  the  use  of  reasonable 
diligence,  to  ascertain  the  fact  of  entry  and  the  right  and 
claim  of  the  party  making  it.'^ 


'  What  acts  are  sufficient  to  con- 
stitute possession  are  matters  of 
local  statutory  regulation,  but,  as  a 
rule,  there  must  be  either  cultivation 
or  improvement;  protection  by  a 
substantial  enclosure;  and  a  use  of 
the  premises,  if  not  enclosed,  for  the 
supply  of  fuel,  of  husbandly,  or  the 
ordinary  use  of  the  occupants. 

^  Turney  v.  Chamberlain,  15  111. 
271;  Thompson  v.  Felton,  54  Cal. 
547. 

3  Humbert  v.  Trinity  Ch.,  24 
Wend.  587;  Cahill  v.  Palmer,  45  N. 
Y.  479. 

*  Jrvinpr  V.  Brown  ell,  11  111.  402. 

Mackson  v.  Bemer,  48  111.  20:i 

oMcClellan  v.  Kellogg,  17  111. 
498;  Dixon  v.  Cook,  47  Miss.  220. 

'Fugate  V.  Pierce,  49  Mo.  441; 
Grube  v.  Wells,  34  Iowa,  148. 

8  Ambrose  v.  Raley,  58  111.  506; 
Sparrow  v.  Hovey,  44  Mich.  63. 

•Moody    V.  Moody,   16  Ilun  (N. 


Y.),  189;LaramorejJ.  Minish,  43  Ga. 
282.  The  question  whether  one 
who  holds  by  color  of  title  holds  in 
good  faith  or  bad,  depends  upon  the 
purpose  with  which  he  acquired  the 
title  relied  on,  and  the  reliance 
placed  upon  it.  If  the  holder  re- 
ceived it,  knowing  it  to  be  worthletis, 
or  in  fraud  of  the  owner's  rights,  it 
can  not  be  said  to  be  held  in  good 
faith.  Still  many  things  that  may 
be  sufficient  to  destroy  the  presump- 
tion of  good  faith  may  be  insufficient 
to  prevent  the  deed  from  being  color 
of  title.  See  Hardin  v.  Gouverneur, 
69  111.  140;  Hall  v.  Mooring,  27  La. 
Ann.  596. 

i«  Fugate  V.  Pierce,  49  Mo.  441 ; 
Crispen  v.  Hannavan,  50  Mo.  536; 
Thompson  v.  Pioche,  44  Cal.  508; 
Nowlin  V.  Reynolds,  25  Gratt.  (Va.) 
137. 

1'  Soule  V.  Biulow,  49  Vt.  329. 


520  ABSTRACTS    OF    TITLE. 

§  4.  Color  of  Title.  It  is  a  general  rule  that  wlicre  one 
enters  upon  land  under  a  recorded  deed,  his  entry  and  claim 
must  be  referred  to  that  deed  and  measured  by  it.'  Such 
deed,  though  void  in  fact,  gives  a  "colorable  title  "^  to  the 
purchaser,  and  where  it  ])rofesses  to  convey  the  entire  estate, 
a  claim  and  occupation  under  it  creates  an  adverse  possession 
as  airainst  all  the  world.^  "What  amounts  to  a  color  of  title, 
is  still  an  open  and  unsettled  question,  though  numerous 
decisions  defining  its  character  exist  in  all  the  States  as  well 
as  in  the  federal  courts,  and  although  in  a  few  instances  docu- 
mentary evidence  is  not  required  to  support  a  claim  under 
color  of  title,*  the  weight  of  authority  and  opinion  indicate 
that  a  written  instrument  is  necessary,  so  far  good  in  appear- 
ance as  to  be  consistent  with  the  idea  of  good  faith,  and  pur- 
porting on  its  tace  to  convey  a  title.^  The  definitions  in  the 
books,  though  widely  divergent  in  many  particulars,  yet 
agree  in  the  main  on  these  points.  A  claim  of  heirship  has 
been  held  to  come  within  the  term,  the  supposed  inheritance 
forming  the  "  color,"  for  says  Gibson,  J.,  "  one  entering  by  a 
title  depending  on  a  void  deed,  would  certainly  be  in  by 
color  of  title,  and  it  would  be  strange  if  another,  entering 
under  an  erroneous  belief  that  he  is  the  legitimate  iieir  of 
the  person  last  seized  should  be  deemed  otherwise."  ^  A 
confusion,  however,  seems  to  exist,  arising  from  tlie  inter- 
changeable use  of  the  terms  "color"  and  "claim"  of  title, 
which,  as  a  matter  of  fact,  may,  and  do,  exist  separate  and 
independent  of  each  other.  To  constitute  the  former,  there 
must,  as  a  rule,  be  a  pa])er  title,  while  the  latter  may  exist 
wholly  by  parol.''  Possession  under  a  claim  of  title,  without 
a  conveyance  or  other  written  instrument,  limits  the  person 
so  asserting  his  claim,  to  his  actual  enclosure  or  occupancy,* 

'   1  Stevens  r.  Brooks,  24  Wis.  326;  Lowry,  15  Ga.  338. 

Crary  v.  Goodman,  22  N.  Y.  170.  ^McCaW  v.  Niely,  3  Watts  (Pa.), 

2Edgertont\  Bird,  6  Wis.  527.  72;  and  see  Cooper  v.  Ord,  60  Mo. 

3  Hall  V.  Law,  102  U.  S.  461.  420. 

^Coopert;.  Ord,  60Mo.  431.  'Hamilton  v.  Wriglit,  30  Iowa, 

5  Baker    v.  Swan,    .32    Md.    355;  486. 

Kruse  v.  Wilson,  79  111.  240;  Stark  »  Dills  r.  Hubbard,  21  111.  328. 
V.  Starr,  1    Sawyer,  20;  Gittens  v. 


ADVERSE   TITLE.  521 

but  when  founded  upon  a  claim  and  color  of  title,  a  construct- 
ive possession  of  the  entire  tract  will  follow  the  actual  occu- 
pancy of  any  portion/  provided  the  deed  or  other  matter  be 
of  record.^ 

§  5.  Adverse  Possession  Under  Color  of  Title.  A  valid 
and  perfect  title  is  not  required  in  order  to  entitle  a  party  to 
rely  upon  adverse  possession  under  the  statute  of  limitations,' 
nor  is  it  necessary  that  he  should  trace  title  through  a  chain 
to  any  source.*  A  deed  which  purports  to  give  a  complete 
title  will  be  sufficient  to  give  color  of  title,  although  the 
grantor  may,  in  fact,  have  only  the  rights  of  a  mortgagee,*  or 
lessee;*^  or,  if  the  deed  was  issued  on  an  erroneous  or  void  de- 
cree;^ or,  in  pursuance  of  a  sale  under  an  imperfectly  executed 
trust;*  and  generally,  when  followed  bj'  continuous  and  unin- 
terrupted possession  for  the  entire  statutory  period,  it  will 
constitute  an  adverse  holding,  effective  for  all  purposes,  how- 
ever groundless  the  su]-)posed  title  may  be.*  The  lands  claimed 
must  be  fully  identified  or  described  in  the  instrument,'" 
for  mere  occupancy  of  land  in  virtue  and  under  a  claim  of  a 
grant  which  does  not  embrace  it,  is  not  adverse  possession 
sufficient  to  defeat  a  transfer  of  title,"  and  the  claim  must  not 
be  general,  but  specific.^' 

§  6.     Constructive  Possession.     Where  title  is  asserted  ad- 

1  Brooks  V.   Bmyn,    18   111.   539;      ley  v.  Green,  52  111.  223. 

Scott  V.  Elkins,  83  N.  C.  424;  Cole-  sGebhard  r.  Sattler,  40  Iowa,  152. 

rnanw.  Billings,  90  111.  577;  but  if  »Ford   v.   Wilson,  35    Miss.   504; 

the  true  owner  be  in  actual  posses-  Grant  v.  Fowler,  39  N.  H.  104;    Ty- 

sion  of  any  part  of  the  lands,  his  ler  Adv.  Fnj.,  907;    Davis  v.  Easly, 

constructive  seizin  extends  to  all  not  13  111.  192. 

in  fact  occupied  by    the  intruder:  •'•Lane  v.   Gould,  10    Barb.   254; 

Hunnicut  t?.  Peyton,  102  U.  S.  333.  Jackson   v.  Woodrutt",   1  Cow.  276; 

2  Tritt  V.  Roberts,  64  Ga.  156.  Fujrate  v.  Pierce,  49  Mo.  441;  Grube 
8  Close  V.   Samra,   27   Iowa,  503;  v.  Wells,  34  Iowa,  148. 

Jackson  v.  Woodruff,    1  Cow.  276;  "  Laverty  r.  Moore.  33  N.  Y.  658; 

Elliott V.  Pearle.  10  Pet.  412.  Parish  r.  Coon,  40  Cal.  ;>j;  Grube  r. 

*  Rawson  v.  Fox,  55  111.  200.    Cora-  Wells.  34  Iowa,  148. 

pare  Hedges  v.  Paulin,  5  Biss.  177.  '^  (;;,ary  v.  Gootlnian,  22  N.  Y.  170; 

^  Stevens  v.  Brook?,  24  AVis.  326.  Halhis  v.  Bell,  5'?  Barb.  247;  Pi  pper 

6  Sands  r.  Hughes,  53  N.  Y.  287.  v.  O'Dowd,  39  Wis.  538. 

'■  Huls  V.  Bunten,  47  111.  396;  Hink- 


522  ABSTKACTS   OF   TITLE. 

versely  under  a  claim  of  riglit,  and  by  reason  of  occupancy  and 
possession,  it  is  a  rule  of  universal  application  that  the  extent 
of  the  claim  must  be  measured  by  the  instrument  under  which 
the  claim  is  made.^  When  such  instrument  purports  to  convey 
the  entire  title,  and  actual  occupancy  is  only  had  of  a  portion 
of  the  premises  described,  the  claimant  is  constructively  in  pos- 
session of  the  entire  tract,^  his  occupancy  of  a  part  beinn^,  in 
contemplation  of  law,  tlie  occupancy  of  every  portion,^  but 
there  can  be  no  constructive  possession  without  the  color  of 
title  *  aiforded  by  some  deed,  instrument  or  proceedin<^  pur- 
porting to  convey  the  whole  and  defining  boundaries,  as  well 
as  actual  possession  of  a  part,^  Nor  will  constructive  posses- 
sion be  sufficient  to  confer  title  to  any  portion  in  the  adverse 
seizin  of  another.® 

§  7.  Adverse  Possession  From  User.  An  actual  continued 
occupation  of  premises  under  a  claim  of  title  exclusive  of  any 
other  right,  although  not  founded  on  a  written  instrument, 
judgment,  or  decree,  is  yet  sufficient,  if  extending  through  the 
entire  statutory  period,  to  confer  title  to  the  portion  so  actually 
occupied.^  It  is  immaterial  to  support  title  thus  claimed 
whether  there  be  a  deed  valid  in  form,  or  whether  there  be 
no  deed,^  and  the  party  may  even  know  that  his  title  is  bad,' 
but  there  must  be  a  claim  of  title,  even  if  oral,  and  exclusive 
of  the  claim  of  all  others.'"  The  claim  must  be  for  the  entire 
title,  and  not  subservient  to  another,"  and  there  must  be 
actual  occupancy  measured  by  a  distinct,  visible  and  marked 
possession.'^     Permissive  user  can  never,  by  any  lapse  of  time 

1  Washburn  v.   Cutter,    17   Minn.  «  Rannels  v.  Rannels,  52  Mo.  108. 

361 .  ^  Bogarclus  v.  Trinity   Church,   4 

^  Constructive  possession  has  been  Sand.  Ch.  (N.  Y.),  633;  Jackson  v. 

defined  to  be  a  possession  in   law,  Wheat,  18  Johns.  40. 

without  possession  in  fact:    Hodges  "^  Humberts.  Trinity   Church,  24 

V.  Eddy,  38  Vt.  327.  Wend.  587;  Rannels  v.  Rannels,  52 

3  Brooks  V.   Bruyn,    18    111.   5-39;  Mo.  108. 

Crispen  v.  Hannavan,  50  Mo.  536.  i'  Howard    v.  Howard,    17    Barb. 

*  Wells  V.  Jackson  Manuf.  Co.,  48  285;  Jackson  v.  Johnson,  5  Cow.  74; 

N.  H.  491.  Bowman  v.  Lee,  48  Mo.  335. 

^Fugate  p.  Pierce,  49Mo.  441.  '^  Corning  i\  The  Troy,  etc. ,  Fac- 

«  Walsh  V.  Hill,  41  Cal.  571.  tory,  44  N.  Y.  577;  Fugate  v.  Pierce, 

'  Dills  P.  Hubbard,  21  111.  328.  49  Mo.  441. 


ADVERSE    TITLE.  523 

and  oven  tliongh  continuous  and  exclusive,  ripen  into  a  title 
to  the  fee,  when  the  oriijrinal  entry  was  by  consent  of  the 
owner,  and  no  adverse  claim  of  ownership  has  been  asserted.' 

§  8.  Naked  Possession  Without  Claim.  "  Squatters  "  or 
intruders  upon  lands  acquire  no  rights  by  reason  of  possession, 
as  this  gist  of  every  adverse  holding  is,  that  it  is  accompanied 
by  a  claim  of  right,  and  a  mere  trespass  can  never  ripen  into 
a  right,  so  as  to  set  the  statute  in  motion,  no  matter  how  long 
continued;^  nor  will  occupation  by  mistake  or  ignorance  suf- 
fice to  constitute  an  adverse  holding.'  But  an  entry  by  one 
without  the  color  of  title,  or  claim  of  right,  may  subsequently 
become  adverse  by  his  acquiring  and  asserting  a  claim  of 
-title;  and  the  statute  will  begin  to  run  from  the  time  of  sucli 
assertion.'' 

§  9.  Tacking.  When  several  adverseclaimants  unite  their 
several  possessions  into  one  continuous  term,  this  is  called 
tacking.  AVhere  there  are  several  successive  adverse  claim- 
ants, the  last  one  may  tack  the  possession  of  his  predecessors 
to  his,  so  as  to  make  a  continuous  adverse  holding  for  the 
statutory  period,  provided  there  is  a  privity  of  possession  be- 
tween such  occupants;'^  and  such  privity  may  arise  from  a  parol 
bargain  and  sale  of  the  possession  of  the  premises,  followed 
by  delivery  thereof,  as  well  as  by  a  formal  conveyance  from 
one  occupant  to  the  other ;^  while  actual  possession  by  ])rior 
occupants  claiming  title,  although  having  no  color  of  title, 
will  always  avail  a  subsequent  occupant  under  color  of  title, 
claiming  under  such  prior   occupants,  in  making  out  a  pos- 

1  Indianapolis,  etc.,  R.  R.  Co.  v.  Farisli  v.  Coon,  40  Cal.  33;  Grube  v. 
Ross,  47  Ind.  25;  Cooper  tJ.  McBride,  Wells,  34  Iowa,  148;  Dow  v.  McKeu- 
4  Houst.  (Del.)  461;  Bedell  v.  Shaw,      ney,  64  Me.  138. 

59]sr.  Y.  46;    Hudson  v.  Putney,  14  *  Hamilton  v.  Wright,   30   Iowa, 

W.  Va.    561.      Compare    Ford    v.  480. 

Holmes,  61  Ga.  419.  ^Shuffleton   v.  Nelson,  2  Sawyer 

2  Thompson  v.  Pioche,  44  Cal.  508;  (C.  Ct.),  540;  Haynes  v.  Boardman, 
Nowlin  V.  Reynolds,  25  Gratt.  (Va.)  119  Mass.  414;  Alexander  v.  Stew- 
137.     Nor  can  the  successive  posses-  art,  50  Vt.  87. 

sion   of  trespassers  be  connected  to  *  Shuftleton   r.  Nelson,   2  Sawyer 

raalce  the  bar  of  the  statute:  Bak(  r  (C.  Ct.),  540;  Kruse  v.  Wilson,  79  III. 

V.  Hale,  6  Baxter  (Tcnn.),  46.  233;  Weber  v.  Anderson,  73  111.  439. 

3  Thomas  v.   Babb,  45  Mo.  384; 


52-i  ABSTRACTS    OF    TITLE. 

sessorj'  title  in  himself.'  The  element  of  contiimity  must, 
however,  appear,  and  several  successive  but  unconnected  dis- 
seizins or  adverse  possessions,  though  amounting  in  the  aggre- 
gate to  twenty  years,  or  such  other  period  as  the  statute  may 
prescribe,  can  not  be  tacked  together  to  make  such  a  contin- 
uous possession.' 

§  10.  Possession  as  Notice.  Possession,  while  it  may  not 
be  "nine  points  of  the  law,"  always  has  been,  and  will  doubt- 
less ever  continue  to  hQ,  pi' i ma  facie  evidence  of  the  highest 
estate  in  land,  to  v/it,  a  seizen  in  fee,^  and  when  open,  notori- 
ous and  visible,  it  has  always  been  regarded  as  aflbrding 
constructive  notice  to  others  of  the  occupant's  title  and  equi- 
ties.* 

§  11.  "Who  May  Acquire  Adverse  Title.  One  who  enters 
into  possession  of  land  in  subordination  to  the  title  of  another 
is  estopped  from  denying  that  title,  while  he  holds  actually  or 
presumptively  under  it;  this  is  a  fundamental  rule  of  univer- 
sal observance.^  Yet  a  trustee  may  disavow  and  disclaim  his 
trust;®  a  tenant  the  title  of  his  landlord,  after  the  expiration 
of  his  lease;''  a  purchaser  the  title  of  his  vendor,  after  the  breach 
of  his  contract  by  the  latter;  and  a  tenant  in  common,  the 
title  of  his  co-tenant;  and  drive  the  respective  owners  and 
claimants  to  their  action  within  the  p>eriod  of  the  statute  of 
limitations.  In  like  manner  one  who  has  possession  of  land 
under  an  agreement  to  purchase,  which  contemplates  a  contin- 
uing right  of  possession  wdiile  the  contract  is  being  performed, 
and  an  absolute  right  of  possession  by  virtue  of  its  perform- 
ance, may,  on  performance,  deny  the  title  of  the  vendor;  and 
thereafter  his  possession  will  be  adverse.^     A  grantor  remain- 

iDay  V.  Wilder,  47  Vt.  584.  ^  Wilson  v.  James,  79  N.  C.  349; 

r  '  Shnffleton  v.  Nelson,  2  Sawyer  Clarke  v.  Clarke,  51  Ala.  498;  Hatch 

(C.  Ct.),  540;  Marsh  v.  Griffin,  53  Ga.  v.  Bullock,  57  N.  H.  15. 
320;  Pearues  v.  Warley,  14  S.  C.  180.  ^Jamison  v.  Perry,  38  Towa,  14. 

^Gulf  R.  R.  Co.  V.  Owen,  8  Kan.  ''Or  by  rescinding  the  lease  and 

409.  claiming  a  new  title :  Weichselbaiim 

•'Redden  v.   Miller,    95   111.   SS*^;  v.  Curlett,  20  Kan.  709;  as  wherethe 

Pinney  iJ.  Fellows,  15  Vt.  525;  Per-  tenant  i^urchased  #he  property  at  tax 

kins  V.  Swank,  43  Miss.  349;  Hop-  sale. 

pin  V.  Doty,  25  Wis.  573;  O'Rourke  sCatlino  v.  Decker,  38  Conn.  262; 

V.  O'Conner,  39  Cal.  442.  Stark  f.  Starr,  1  Sawyer  (C.  Ct.),15. 


ADVERSE   TITLE.  525 

ing  in  possession  would  seem  to  be  effectually  estopped  by  tlie 
covenants  of  his  deed,  and  sucli  has  been  held  to  be  the  law/ 
yet  in  a  number  of  instances  a  grantor  who  conveys  by  quit- 
claim deed  only,  by  remaininj^  in  possession  of  the  property 
and  asserting  a  hostile  claim,  has  been  permitted  to  acquire  a 
title  against  his  grantee  by  virtue  of  the  statute  of  limitations;'* 
while  some  courts  have  even  held  that  a  grantor  with  warranty 
may,  subsequent  to  the  delivery  of  his  grant,  originate  an  ad- 
verse possession,  and  is  not  estopped  from  asserting  the  same 
by  the  covenant  of  warranty.^ 

§  12.  Remainder-men.  It  is  a  well  established  princi])lo 
that  tlie  statutes  of  limitation  do  not  commence  to  run  until 
the  right  of  action  or  right  of  entry  accrues.  It  therefore 
does  not  commence  to  run  against  a  remainder-man  until  the 
termination  of  the  precedent  estate,*  when  the  deed  creating 
such  prior  estate  is  of  record,  or  the  party  in  possession  has 
notice  of  its  existence.  But  when  a  party  has  had  the  unin- 
terrupted aiul  undisputed  possession  of  land  for  the  statutory 
period,  and  during  that  time  has  paid  all  taxes  legally  assessed 
thereon,  and  has  had  neither  actual  nor  constructive  notice  of  a 
prior  unrecorded  conveyance  creating  a  life  estate  with  a  re- 
mainder o\'er  to  others,  such  possession  and  payment  of  taxes 
by  him  will  be  a  bar  to  a  recovery  by  such  remainder- man, 
even  though  the  full  period  of  the  statute  has  not  elapsed 
since  the  termination  of  the  life  estate,  and  notwithstanding 
the  fact,  that  the  party  so  asserting  title  is,  by  the  terms  of 
such  undisclosed  deed,  made  a  tenant  in  common  with  such 
remainder-man.'^ 

§  13.  Reversioners.  As  against  a  reversioner  there  can 
be  no  adverse  possession.  It  can  only  exist  against  one  enti- 
tled to  possession.® 

§  14.     Tenants  in  Common.     The  general  rule  is,  that  the 

The  executed  contract  then  becomes  *  Sherman  t'.  Kane.  SG  N.  Y.  57. 

a  sale  and  not  merely  an  atrreemont  *  Christie  v.  Gap^e,  71  N.  Y.  1S9; 

to  purchase:  Ridgeway  v.  HoUiday,  Du{,Mn  v.  Follett,  100  111.  Wl;  Fo<ral 

59  Mo.  444.  V.  Perro.  10  Bos.  (N.  Y.)  100;   Car- 

1  Van  Kcuren  r.  R.  R.Co.,  38  N.  J.  pcnter  v.  Denoon,  29  Ohio  St.  :579. 
L.  165.  ^  Du,?an  v.  Follett,  100  111.  581. 

*Dorland  v.  Magilton,  47  Cal.  485.  «  Clark  v.  Huges,  13  Barb.  147. 


526  ABSTRACTS    OF    TITLE. 

statute  of  limitations  does  not  run  as  between  tenants  in  com- 
mon, for  the  reason  in  part,  tluit  the  possession  of  one,  in  con- 
templation of  law,  is  the  possession  of  all,'  and  this  is  espe- 
cially so  wiien  all  the  ])arties  derive  title  through  the  same 
deed  or  conveyance,^  but  if  a  tenant  in  common  of  part  con- 
vey the  whole,  his  grantee,  if  in  possession,  will  hold  adversely 
to  the  others,^  while  the  possession  of  one  of  several  tenants 
may  become  adverse,  when  his  acts  amount  to  an  exclusion  of 
his  co-tenants.* 

§  15.  Persons  under  Disability.  A  special  exception  haS 
been  inade  by  the  statute  in  case  of  infants,  insane  persons, 
and  persons  imprisoned  on  a  criminal  charge  for  any  period 
less  than  life,^  and  their  rights  in  land  are  not  only  protected 
during  the  period  of  disability,  but  for  a  certain  period  after 
the  disability  has  ceased,  or  after  the  death  of  a  person  dying 
under  disabilit3^     This  period  is  usually  fixed  at  ten  years. 

§  16;  Adverse  Rights  as  Against  the  State.  It  is  matter 
of  common  knowledge,  says  Mr.  Justice  Field,®  that  statutes 
of  limitation  do  not  run  against  the  State.  That  no  laches 
can  be  im])utGd  to  the  king,  and  that  no  time  can  bar  his 
rights,  was  the  maxim  of  the  common  law,  and  was  founded 
on  the  principle  of  public  policy;  that,  as  he  was  occupied 
with  the  cares  of  government  he  ought  not  to  suffer  from  the 
negligence  of  his  officers  and  servants.  The  principle  is  ap- 
plicable to  all  governments  which  must  necessarily  act  through 
numerous  agents,  and  it  is  essential  to  a  preservation  of  the 
interest  and  property  of  the  public.  It  is  upon  this  principle 
that  in  this  country  the  statutes  of  a  State  prescribing  periods 
within  which  rights  must  be  prosecuted  are  not  held  to  em- 

J  Dugan  t>.  FoUett,  100  111.  581;  *  Florence  t).  Hopkins,  46  N.  Y. 
Ang.  on  Lim.  §422;  Florence  ?;.  Hop-  182.  Though  adverse  possession 
kins,  46  N.  Y.  182;  McQuiddy  v.  and  disseizin  may  not  be  in  all  par- 
Ware,  67  Mo.  74;  Aquirre  v.  Alex-  ticulars  identical,  their  effect  is  the 
ander,  58  Cal.  21.  same  for  the  purpose  of  terminating 
2 Dugan  f.  FoUett,  loom.  581.  a  tenancy  in  common:  Id.;  Mil- 
3  Clapp  V.  Bromagham,  9  Cow.  lard  v.  McMulien,  68  N.  Y.  345. 
530;  Florence  t'.  Hopkins,  46  N.  Y.  ^Married  women  are  sometimes 
182;  Rigg  V.  Fuller,  54  Ala.  141;  included  in  this  exception. 
Faulke  v.  Bond,  41  N.  J.  L.  527.  ^  Gibson  v.  Chouteau,  13  WaU.  92. 


ADVERSE    TITLE.  527 

brace  tlic  State  itself/  unless  it  is  expressly  designated,  or  the 
niiscliiefs  to  be  remedied  are  of  such  a  nature  that  it  must  nec- 
essarily be  included.  As  legislation  of  a  State  can  only  ap- 
ply to  persons  and  things  over  which  the  State  has  jurisdic- 
tion, the  United  States  are  also  necessarily  excluded  from  the 
0])eration  of  such  statutes,^  As  adverse  possession  can  not 
run  against  the  government,  it  logically  follows  that  the  claim 
can  not  be  asserted  against  a  grantee  of  the  government,  and 
mere  possession  of  government  lands,  though  open,  exclusive 
and  uninterrupted  for  twenty  years,  creates  no  impediment  to 
its  recovery  by  the  government,  or  by  one  who  withi^i  that 
period  receives  a  conveyance  from  the  government.^ 

§  17.  Effect  of  Adverse  Possession.  AV^hcn  title  to  land 
has  been  perfected  by  twenty  years  adverse  possession  and 
enjoyment,  it  becomes  equally  as  strong  as  one  obtained  by 
grant,*  and  creates  in  the  person  so  asserting  same,  if  other- 
wise unimpaired,  a  legal  title  to  the  fee  which  is  etfective  for 
all  purposes.^  In  many  States,  ten,  seven,  or  even  live  years 
uninterrupted  possession  under  color  of  title,  coupled  with  acts 
of  ownership,  payment  of  taxes,  etc.,  will,  under  the  opera- 
tion of  the  statute,  cure  defects  in  the  instruments  under 
which  the  entry  was  made,  and  bar  all  actions  for  the  recovery 
of  the  land,  thus  securing  to  the  occupier  a  good  title  in  law, 
no  matter  how  defective  the  title  of  the  grantor,  or  the 
instrument  ot  conveyance,  may  have  been.®  This  cii'cum- 
stauce,  in  cases  where  no  disability  is  shown  to  exist,  is  often 
of  vital  importance  in  passing  titles  otherwise  defective,  and 

'Gardiner  t\  Miller,  47  Cal.  570.  bility  of  an   actual  grant,  but  is  a 

2  United  States  v.  Hoar,  2  Mason,  positive  rule  established  for  quieting 

312;  Teople   v.   Gilbert,    18    Johns.  titles:  Melvin  v.  Waddell,  75  N.  C. 

228.  3G1. 

^Oaksmith  v.  Johnson,  92  U.  S.  ^Covington  v.  Stewart,  77  N.  C. 

343.  148. 

*  Sherman  v.  Kane,  86  N.   Y.  67;  "Ryan  v.  Kilpatrick,  66  Ala.   332; 

Schneider  v.    Botsch,  90    III.    577;  Ilunton   v.  Kichols,    55    Tex.    217; 

Bowen  V.  Preston,  48  Ind.  367.     The  Stark  r.  Brown,    101  III.  395;  Har- 

presumption  of  a  grant  from  adverse  ris  v.    McGovern,    99   U.    S.    161; 

possession  continued  for  the  statute-  MoingonaCoal  Co.  v.  Blair,  51  Iowa, 

ry  term,  is  not  founded  on  any  proba-  4-17;  Jones  v.  Patterson,  62  Ga.  527. 


528  ABSTRACTS    OF    TITLE. 

lays  at  rest  a  vast  number  of  questions  tliat  frequently  require 
lon^  and  laboritms  investigation  to  properly  solve.  The  stat- 
utory requisites  relative  to  possession  and  perfection  of  title 
must  be  lulJ\^  ascertained,  however,  either  by  record  evidence 
or  aliunde  before  the  bar  of  the  statute  can  be  relied  on. 

§  18.  Proofs  to  Support  Title  by  Adverse  Possession. 
When  the  title  offered  is  adverse  in  its  character,  counsel 
should  seek  by  inquiries  in  pais  to  demonstrate  its  validity 
before  passing  same.  The  highest  and  best  record  proof  tljat 
could  be  adduced  would  be  the  decree  of  some  court  of  compe- 
tent jurisdiction,  either  in  an  action  of  ejectment  or  a  suit  to 
quiet  the  title.  A  deed  purporting  to  convey  the  title  is 
next  in  order,  while  payment  of  taxes  and  the  like  still  fur- 
ther tend  to  strengthen  it.*  Many  of  the  facts  which  go  to 
confirm  an  adverse  title  are  not  capable,  however,  of  affirmative 
showing  in  an  abstract,  and  evidence  concerning  them  must, 
from  the  nature  of  the  title,  be  disclosed  aliunde.'^ 

'  Paying  taxes  on  land  is  not  Pvi-  ^  Consult  Turner  v.  Hall,  60  Mo. 

dence  of  possession,  but  goes  to  show  271;  Howland  v.  Cemetery  Assoc.  66 

a  claim  of  title  :  Paine  v.  Hutchins,  Barb.  366;  Soule  v.  Barlow,  48  Vt. 

49  Vt.  314;  Brown  v.  Rose,  48  Iowa,  132;  Harnage  v.  Berry,  43  Tex.  567; 

231.  Kerr  tJ.  Hitt,  75  111.  51. 


CHAPTER  XXXII. 


OriNIONS  OF  TITLE. 


n. 

Perusing  the  abstract. 

§15, 

2. 

Note  taking. 

16, 

3. 

Examination    of     the    muni- 

17. 

ments. 

IS. 

4. 

Examination  of  deeds. 

19, 

5. 

Examination  of  legal  proceed- 

20, 

ings  and  judgments. 

21. 

6. 

Marginal   notes    and   requisi- 

22. 

tions. 

23. 

7. 

Continued. 

8. 

Answers  to  requisitions. 

24, 

9. 

Analysis  of  title. 

10. 

Analytical  chains. 

25, 

11. 

Sketch  maps. 

26, 

12. 

Preservation  of  memoranda. 

27. 

13. 

Passing  the  title. 

14. 

What  constitutes  a  valid  title. 

2S. 

Flaws. 

Clouds  upon  title. 

Inquiries  in  pais. 

Continued — Mechanic's  liens. 

Contmued — Homesteads. 

Printed  copies. 

Framing  opinions. 

Opinions  of  title. 

Continued — Certificates  of  ti- 
tle. 

Opinions  based  upon  the  ab- 
stract. 

Hypothetical  expressions. 

Oral  opinions. 

Liability  for  erroneous  opin- 
ions. 

Conclusion. 


§  1.  Perusing  the  Abstract.  No  specific  rule  can  be  laid 
down  in  regard  to  the  perusal  of  the  abstract  by  counsel,  as 
this  is  something  which  depends  entirely  on  the  habits  and 
professional  methods  of  tlic  individual.  "  The  perusal  should, 
if  the  length  of  the  abstract  will  permit  of  it,"  says  Sugden,' 
"be  finished  at  one  sitting,  although  an\'  difficult  point  of 
law,  the  whole  bearing  of  which  is  not  ascertained,  may  prop- 
erly be  reserved  for  further  and  separate  consideration  ";  and 
this,  perhaps,  will,  to  the  majority  of  the  profession,  be  found 
to  be  the  method  best  calculated  to  produce  satisfactory  re- 
sults. "It  may  sometimes  be  useful,"  says  the  same  author," 
"  to  glapce  over  the  abstract  in  the  first  place,  in  order  to  ob- 


'2  Sugd.  on  Vendors,  10  (Am. 
Ed.) 

34  (529) 


Ibid,  10  (Am.  Ed.) 


530  ABSTKACTS   OF   TITLE. 

tain  a  general  view  of  the  title,  and  experience  will  rapidly 
point  ont  when  a  subsequent  part  of  tlie  ahstract  may  be 
looked  into  advantai^eously  before  its  proper  turn;  but,  speak- 
ing generally,  an  abstract  should  be  perused  but  once,  and 
that  once  effectually.  The  party  should  never  pass  on  until 
he  thoroughly  comprehends  what  he  has  already  read;  the 
advancing  in  a  difficult  title,  in  order  to  comprehend  what 
you  have  passed  and  do  not  understand,  often  leads  to  insur- 
mountable difficulties."  The  experience  of  the  writer  would 
indicate  that  the  remarks  just  quoted  furnish  the  best  method, 
with  some  slight  variations,  for  all  ordinary  examinations,  but 
the  difference  in  the  plan  of  compilation,  as  well  as  the  effect 
of  the  instruments  with  reference  to  registration,  notice,  and 
other  incidentals  not  common  to  the  English  abstract,  renders 
a  somewhat  different  course  necessary  from  that  pointed  ont 
by  Mr.  Sugden.  Whether  the  abstract  be  long  or  short,  and 
the  title  simple  or  complicated,  a  general  perusal,  in  order  to 
obtain  a  preliminary  view,  should  first  be  made.  This  perusal 
is  only  to  establish  the  fact  of  an  apparent  chain  of  title  from 
its  source,  the  government,  or  from  some  person  proposed  in 
whom  the  title  is  assumed  to  be  good.  To  assist  in  arriving 
at  a  correct  estimate,  an  analysis  of  the  abstract  must  always 
be  made  in  intricate  cases,  and  the  same  will  be  found  useful 
in  every  case.  Having  established  the  fact  of  apparent  title 
extending  in  unbroken  sequence  from  the  initial  point  to  the 
person  in  whom  it  is  last  asserted,  a  critical  review  of  every 
remove^  must  then  be  made  to  determine  its  effect  and  valid- 
ity, in  much  the  same  manner,  though  not  for  the  same  pur- 
pose, as  the  English  counsel  examines  the  muniments.  All 
defects,  whether  of  form  or  substance,  are  noted  upon  the 
analysis  just  mentioned,  together  with  notes  of  discrepancies, 
objections,  and  requisitions  for  further  information.  It  would 
be  unwise,  however,  to  lay  down  any  unvarying  rule  for  a 
matter  of  this  kind.     Men's  minds  are  not  alike,   and  the 

'  For  want  of  a  better  name,  each  all  nnnibered  seriatim  from  the  be- 

link  in  the  chain,  whether  by  deed,  g-inning,  and  rei'erred  to  by  number 

will,  mortgage,  lease,  etc.,  is  called  whenever  occasion  calls  for    refer- 

a  "remove,"  and  the  removes  are  ence. 


I 


OriNIONS   OF    TITLE. 


531 


methods  that  insure  the  best  results  in  tlie  case  of  one,  may 
be  entirely  inadequate  in  the  case  of  another.  The  counsel's 
personal  professional  habits  will,  after  all,  be  the  best  guide, 
but  should  he  have  no  decided  habits  of  professional  thought 
or  study,  it  is  believed  the  course  indicated  in  this  chapter 
will  enable  him  to  form  better  opinions,  and  arrive  at  more 
satisfactory  conclusions,  tlian  any  ha2)hazard  or  undefined 
methods  possibly  can. 

§  2.  Note  Taking.  The  real  utility  of  note  taking,  as  an 
aid  to  study  or  investigation  in  any  pursuit,  must  ever  remain 
an  open  question,  yet  it  can  not  be  denied  that  in  the  exami- 
nation of  complicated  titles  the  use  of  notes  is,  in  a  majority 
of  cases,  of  undoubted  benefit,  as  well  in  unraveling  a  tan- 
gled chain  as  in  framing  subsequent  opinions.  In  the  judg- 
ment of  some  writers,  counsel  will  find  it  the  best  and  surest 
method  of  arriving  at  a  just  conclusion,  to  trust  to  his  view 
of  the  title  on  the  face  of  the  abstract  itself,  without  incum- 
bering himself  with  or  relying  upon  notes,'  they  being  re- 
garded as  unnecessary  details  which  often  serve  to  distract 
the  attention.^  Properlj'  and  methodically  used,  however, 
notes  will  usually  be  found  an  important  aid,  while  in  com- 
plicated cases  they  appear  almost  indispensable.  Particularly 
is  this  true  in  making  an  analysis  of  title,  where  the  interest 
of  every  person  connected  with   the  title,  or  possessing  any 


'2  Sugd.  on  Vendors,  10  (Am. 
Ed.) 

2  The  prejudice  which  exists  among 
many  distinguished  members  of  the 
profession  against  the  use  of  notes 
as  an  aid  to  study  or  investigation, 
refers  more  particularly  to  common- 
placing and  abridging,  and  though 
this  was  recommended  by  the  earlier 
writers,  notably  Fulbeck  (l-")90),  Sir 
Matthew  Hale  (16S8),  and  others  of 
later  periods,  as  Mr.  Hotlman,  in  our 
own  time  and  country,  modern  writ- 
ers like  Mr.  Warren,  Mr.  Bishop, 
etc.,  stongly  condemn  the  practice. 
Mr.  Bishop  says  that  if  he  wishes 


"  to  remember  a  thing,  the  last 
method  available  is  to  commit  it  to 
paper.  This  is,  with  me,  to  put  it 
out  of  the  jurisdiction  of  the  mem- 
ory." This  prejudice,  however,  is 
mostly  in  regard  to  note-books  as  a 
means  of  assisting  the  memory,  and 
the  author  last  quoted  admits  the 
utility  of  notes  taken  by  a  lawyer  in 
looking  up  a  question  on  wliich  to 
advise  a  client,  or  references  which 
will  enable  him,  it  litigation  is  after- 
ward carried  on,  to  go  on  with  the 
case  without  a  fresh  search.  See 
Bish.  Fiist  Book  of  the  Law,  §  423. 


532  ABSTRACTS   OF    TITLE. 

rii^lits  in  the  land,  must  be  ascertained  at  every  remove,  and 
notwithstanding  the  fact  that  so  liigh  an  anthoritj  as  Mr.  Sng- 
den  condemns  their  use,  the  American  counsel  will  find  that 
in  a  majority  of  instances  he  must  resort  to  them  or  run  the 
risk  of  overlooking  some  important  matter  in  making  up  his 
final  opinion. 

§  3.  Examination  of  the  Muniments.  In  addition  to  the 
general  survey  of  title  from  all  the  instruments  and  proceed- 
ings generally,  each  particular  step  must  be  examined  tech- 
nically and  critically,  and  its  own  sufficiency  or  insufiiciency 
])assed  upon.  Under  the  English  system  this  would  consist 
of  a  comparison  of  the  original  instruments  with  the  abstract,' 
but  this  task  under  the  American  system  is  supposed  to  have 
been  satisfactorily  performed  by  the  examiner,  and  all  that 
counsel  is  expected  to  do  is  to  see  that  the  instruments  as  they 
are  presented  are  sufficient  in  form  and  substantially  correct. 
This  task  is  the  most  arduous  part  of  the  examination,  for 
the  sufficiency  of  every  instrument  and  proceeding  must  not 
only  be  investigated  with  respect  to  itself  but  frequently 
with  reference  to  numerous  other  instruments  in  the  chain  and 
sometimes  in  connection  with  matters  not  disclosed  by  the 
abstract.  Thus,  a  deed,  by  the  donee  of  a  power  under  a 
will  to  dispose  of  the  property  by  last  will  and  testament, 
presents  two  distinct  phases.  In  the  first  place  the  instru- 
ment itself  must  be  considered  with  reference  to  its  formal 
parts;  its  date;  registration;  estate  conveyed;  a  most  vital 
point;  execution,  etc.  Viewed  only  in  this  light  it  may  be 
insuflicient  as  failing  to  disclose  the  intention  of  the  donee  to 
execute  the  power,  and  though  purporting  to  convey  the  fee, 

^The  duty  of  a  solicitor  in  ex amin-  ments  are  perfect  as  respects  execu- 

ing  an  abstract  is  thus  summed  up  tion,   attestation,  indorsed  receipts, 

by  Mr.  Dart.     He  says:     "The  ob-  registration,  stamps,  etc.;  and4thly, 

ject  of  the  examination  is  to  ascer-  that  there  are  no  indorsed  notices, 

tain,    1st,    that    what     has     been  nor  any  circumstances  attending  the 

abstracted  is   correctly    abstracted;  mode  of  execution,  attestation,  etc., 

2ndly,that  what  is  omitted  is  clearly  etc.,  calculated  to  excite  suspicion  ": 

immaterial  J   ordly,   that    the  docu-  Dart  on  Vendors,  381. 


OriNIOXS   OF   TITLE.  633 

convey  only  tlie  life  estate  of  the  grantor.'  In  the  second 
place,  the  deed  must  be  construed  in  connection  with  tlie 
will  granting  tlio  power,  and  its  legal  sufficiency  considered 
in  relation  to  such  will,  presuming  that  in  form  it  is  unim- 
peachable and  fully  discloses  the  power  and  eviuces  the  in- 
tention of  the  grantor  to  work  under  it.  'Sow  it  is  a  vexed 
question  as  to  whether  it  is  ])f)ssible  for  the  donee  of  a  power 
to  make  any  disposition  of  the  sul)ject  of  the  power  save  in 
the  manner  indicated  in  the  instrument  granting  same.''  An 
important  question  is  liere  presented,  iherefore,  and  upon 
its  solution  depends  the  validity  of  the  proffered  title.  The 
donor  of  the  power  intended  that  it  should  be  executed  by 
the  will  of  the  donee;  he  has  attempted  to  execute  it  by  deed.' 
Here  counsel  must  refer  to  the  will  and  to  the  grant  of  the 
power  therein, and  the  two  must  be  carefully  considered  in  rela- 
tion to  their  effect  upon  the  title.  This  is  but  an  instance, 
but  is  sufficient  to  illustrate  the  matter  and  to  show  the  im- 
portance of  this  branch  of  the  examination  as  well  as  the  care 
and  attention  that  must  be  bestowed  upon  it. 

§  4.  Examination  of  Deeds.  It  is  not  proposeJ,  nor  is  it 
necessary,  to  recapitulate  all  that  has  preceded  relative  to  the 
formalities  or  legal  effect  of  instruments  and  proceedings  of- 
fered in  support  of  title,  but  it  may  be  well,  at  this  jioint,  to 
briefly  call  the  attention  of  counsel  to  the  prominent  features 
of  same  as  they  are  presented  in  the  abstract.  After  a  proper 
inceyjtion  of  title  has  been  shown,  or  where  same  has  been 
satisfactorih'^  establislied  in  some   person   at   some   definite 

'  Dunning  v.  VanDusen,  47  Ind.  authorities    are  numerous   and  uni- 

423;  Jassey  v.  White,  28  Ga.  295;  form   in    enunciating  the  principle 

and  see  Funk  v.  Eggleston,  92  111.  that  the  donee  can  not  enlarge  and 

615.  amplify  the  scope  of  the  powor,  but 

2  See  page  359  for  a  discussion  of  must  be  strictly  controlled  in  its  exe- 

this  subject.  cution  by  the  declared  intention  of 

'  The  courts  in  England,  and  very  the  donor;  and  that  a  power  to  be 

generally  in  this  country,  have  de-  executed  by  will  can  not  be  i^xecuted 

terrained  that  when  a  power  is  to  by  deed,  and  equ  ty  will  not  rilieve 

be  executed  by  will,  the  donor  in-  if  the  attempt  is  ni  i  le:     F.irw  11  on 

tended  that  it  should  remain  under  Powei-s.  2(54;    Ue  d  /.  ShiTir  >ld,  10 

the  contract  of  the  donee  "to  the  Vcs.    (Hng.)   ;i70;    WiLi.^  r.   Uuius, 

moment  of  his  death."     And   the  10  Ittporlur,  14 J. 


534  ABSTRACTS    OF    TITLE. 

pcriotl,  citlier  by  assumption  or  iiivestii,^ation,  the  first  duty 
of  counsel  is  to  see  that  the  course  of  title  is  uninterrupted 
from  that  person  and  pei'iod.  For  this  ])urpose,  observe  tlie 
names  of  i^arties  and  dates  of  instruments  down  throui^h  the 
entire  chain,  and  note  all  places  where  the  chronoloi^ical 
sequence  is  broken  or  in  inverse  order.  This,  with  a  general 
view  of  each  instrument,  constitutes  the  preliminary  survey. 
An  analysis  of  the  abstract,  if  it  be  a  long  or  complicated 
title,  must  now  be  made,  and  the  sufhciency  or  effect  of  every 
remove  noted  therein.  Again  return  to  the  iirst  instrument 
and  read  same  carefully,  observing  the  following  points, 
Mdiich,  for  greater  certainty,  it  is  well  to  put  interrogatively. 
The  parties:  are  they  properly  named  and  do  they  include 
all  who  by  the  initial  matters  are  shown  to  possess  title  or 
interests?^  Have  they  all  executed,  and  is  the  execution  cor- 
rect in  form?  Observe  in  this  connection  any  apparent  dif- 
ferences in  the  orthography  of  names  as  shown  in  prior  or 
subsequent  conv^eyances,  and  in  case  such  differences  appear, 
make  a  requisition  for  further  information  disclosing  identity. 
See  that  correct  descrlptlo  persoiue  accompanies  the  names 
as  indicative  of  the  capacity,  domestic  i-elations,  etc.  Where 
one  conveys  alone,  no  clue  being  given  as  to  his  domestic 
status,  an  inquiry  as  to  marriage  can  never  be  safely  omitted. 
In  case  of  corporate  conveyances,  require,  if  necessary,  addi- 
tional evidence  relative  to  the  power  of  the  corporation  to 
receive,  hold  and  convey,  as  well  as  to  show  proper  execution. 
The  estate:  what  estate  purports  to  be  convej^ed?  If  the 
entire  estate,  observe  by  reference  to  prior  conveyances  what 
estate  is  held  by  the  grantor,  for  he  can  convey  no  more  tlian 
he  possesses,  whatever  be  the  form  of  words  used.  Is  it  en- 
cumbered by  expressed  or  latent  liens?  lias  the  right  of 
dower,  in  a  proper  case,  been  relinquished?  Have  the  home- 
stead rights  been  waived?  and  if  attempt  has  been  made  in 
either  case,  has  it  been  successfully  accomplished?      If  the 

'  The  legal  effect  of  the  matters  same  given.     The  reader  is  referred 

mentioned  in  this  section  have  all  to  the  various  heads  and  subdivisions 

been  discussed  in  other  parts  of  the  under  which  they  will  severally  Le 

work  and  the  authorities  relating  to  found  for  extended  discussions. 


OPINIONS    OF    TITLE.  535 

absti-act  fails  to  disclose  these  facts,  make  a  requisition  fur 
further  iiiforinatiou.  The  ])ropci'ty:  does  the  description  cor- 
respond in  essential  parts  to  the  caption  of  the  abstract,  or  to 
the  subject  of  the  examination?  Does  it  correspond  witli  prior 
conveyances?  Observe  carefully  for  omissions  and  niisde- 
scripti'.n.  The  covenants  are  not  essential  to  title  and  bein^ 
simply  for  the  further  assurance  of  the  purchaser,  may  be 
<3isrei2:arded  except  when  they  become  necessary  to  show  estop- 
pel. The  conditions  are  important,  observe  in  what  manner 
they  may  aftect  title  by  reason  of  non-perlormance  or  breacli. 
Do  they  disclose  a  possibility  of  divesture  of  title  at  some 
future  period,  or  confer  upon  the  grantor  contingent  rever- 
sionary rights  of  re-entry  or  forfeiture?  If  the  deed  icself  is 
the  result  of  prior  agreement,  does  it  substantially  conform 
to  such  prior  agreement  as  shown?  This  inquii-y  is  not 
always  important,  but  ma.y  become  so.  The  (hites:  comjiare 
the  dates  respectively,  of  execution,  acknowledgment,  and 
registration.  Do  they  show  a  proper  coi-res])ondence?  Com- 
pare these  dates  with  those  of  prior  and  subsequent  convev- 
ances.  In  case  of  conflicting  titles  from  the  same  source,  this 
is  very  impoi'tant  to  show  ])riority. 

§  5.  Examination  of  Legal  Proceedings  and  Judgments. 
So  much  has  lieen  said  upon  this  sulijcet  in  the  preceding 
chapters  that  little  remains  without  indulging  in  repetition, 
yet  as  it  lias  long  been  customaiy  in  nearly  every  part  of  the 
country  to  look  solely  to  deeds  as  evidences  of  title,  it  is  the 
dcbire  of  the  writer  to  strongly  impress  upon  the  minds  of 
examiner  and  counsel  that  all  conveyances  resulting  from 
legal  proceedings,  aside  from  their  prima  yacie  quality,  are 
valueless  as  evidence  without  proof  of  capacity  in  the  grantor, 
and  this  can  come  only  from  the  fact  of  jurisdiction.  Should 
evidence  of  this  fact  be  wanting,  a  requisition  must  be  made 
for  further  information  concerning  same,  and  in  no  case  should 
a  deed  be  passed  without  full  ])roof  of  its  validity.  "Where 
official  deeds  of  any  kiiul  are,  by  statute,  made  ]iresumptive 
evidence  of  their  own  validity  and  of  the  validity  and  regu- 
larity of  the  anterior  proceedings  upon  which  they  rest,  and 
v^ounsel  relying  on  the  jjriina  yiicie  evidence  thus  presented 


536  ABSTRACTS   OF   TITLE. 

dispenses  witli  proof  of  prior  regularity  and  jurisdiction,  prn- 
dence,  as  well  as  fair  dealing,  wuuld  suggest  that  special  refer- 
ence to  such  facts  be  made  in  the  opinion,  that  the  client  and 
his  assigns  may  know  that  the  title  passed  is  a  lyvhiia  facie 
title  onlj',  and  has  not  been  demonstrated.  In  the  preliminary 
measures  to  all  judicial  sales  counsel  will  first  observe  that 
the  proceeding-is  apparently  regular  and  formal;  this  is  not 
vital,  but  may  in  some  instances  suggest  an  inquiry  that 
requires  answer.  Next,  he  could  observe,  the  parties:  are 
they  identical  (in  actions  hi  ■personam)  v/ith  the  persons  who 
now,  or  at  some  former  period,  have  held  title,  or  possessed 
equities  capable  of  being  reached  by  execution,  in  tlie  lands 
under  consideration?  Hesolve  any  doubts  that  may  arise  by 
a  requisition.  Affidavits  of  identity  and  disclaimer  are  about 
the  best  available  means  for  determining  this  point.  Do  tlie 
names  in  process,  pleadings  and  judgment  correspond?  lias 
there  been  a  personal  appearance,  or  was  the  judgment  taken 
on  default?  If  the  latter,  does  the  abstract  show  a  due  and 
leo^al  service,  either  personal  or  substituted  ?  The  subject-mat- 
ter: do  the  pleadings  disclose  a  cause  of  action  within  the 
jurisdiction  of  the  court?  The  judgment  or  decree:  is  it  reg- 
ular in  form,  i.  e.,  definite,  certain,  etc.?  Does  it  correspond 
with  the  process  and  pleading,  i.  e.,  parties  and  allegations? 
The  sale:  is  it  wan-anted  by  the  prior  proceedings?  Is  the 
selling  officer  clothed  w'ith  proper  authority?  AVas  it  con- 
ducted according. to  law? 

§  6.  Marginal  Notes  and  Requisitions.  It  will  be  remem- 
bered that  in  England  the  abstract  is  compiled  almost  entirely 
from  original  documents,  and  that  devious  courses  as  well  as 
intervals  of  title  are  supplemented  and  filled  np  by  matter 
which  to  the  American  examiner  would  be  entirely  extra- 
neons.  So  the  English  counsel,  as  he  proceeds  in  the  perusal, 
frequently  calls,  in  the  margin,^  for  evidence  of  facts  which  he 
supposes  may  be  material  and  will  readily  be  produced,  and 

^  The  English  abstract  is  frequent-  observations  of  examining  counsel, 

ly  written   upon  a   sheet  with  four  The  calls  and  requisitions  made  on 

margins   (so  called),  the  outer  left  this  margin  thus  become  a  part  of 

hand  one   being  left  clear  for  the  the  abstract. 


OPINIONS    OF    TITLE.  537 

further  notes  sucli  objections  to  the  vendor's  title  as  lie  thinks 
])roper;  all  of  which  must  be  satisfactorily  answered  and  met 
by  the  vendor  and  his  solicitor.  In  a  less  degree,  the  same 
procedure  may  be  followed  by  the  American  counsel,  though 
many  of  the  "  requisitions"  necessary  to  the  ])roj)er  elucida- 
tion of  au  Englisli  title,  are  nnnecessary  in  the  United  States 
by  reason  of  our  system  of  registration  and  its  attendant  doc- 
trines of  notice  and  estoppel.  AVhere,  however,  a  descent 
occurs  in  the  absti'act,  and  a  deed  is  shown  executed  by  the 
•'heirs  at  law"  of  the  person  shown  to  be  last  seized,  a  call 
should  be  made  for  further  inquiry  or  evidence  touching  the 
legitimacy  of  the  claim  of  title  thus  asserted.  So,  too,  of  a 
partition  among  heirs,  by  the  mutual  interchange  of  deeds,  in 
which  minors'  rights  may  be  affected.  Frequently  a  death  is 
suggested  inrerentially,  as  where  a  man  and  wife  convey,  and 
on  subsequent  revesture  of  title  the  man  alone  executes  a  deed. 
In  the  same  way  a  marriage  may  be  suggested,  and  in  every 
case,  where  an  individual  conveys  with  no  words  descri'ptive 
of  the  person,  inquiiy  should  be  made  in  regard  to  m;irriage. 
American  abstracts  are  not  made  with  a  "  margin,"  however, 
and  the  little  strip  on  the  left  hand  side  of  the  sheet  was  not 
left  to  write  or  scribble  on,  nor  should  the  examining  counsel 
use  it  for  that  purpose.  If  by  chance,  or  sheer  perversity,  he 
should  do  so,  his  writing  should  all  be  erased  before  the 
abstract  leaves  his  hands,  that  what  he  has  written  may  nut 
confuse  others  or  be  mistaken  for  the  work  of  the  abstract 
maker.  Objections  may  be  noted  on  his  analysis,  or  ]ire- 
served  on  separate  sheets,  and  when  required  for  use  may  be 
formally  drafted  and  annexed  to  the  abstract,  or  embodied  in 
his  opinion.  Even  in  England,  where  the  custom  originated, 
it  seems  to  be  generally  discouraged  by  modern  conveyancers 
and  solicitors,  as  will  be  seen  by  the  next  paragraj^h. 

§  7.  Continued.  The  American  system  of  title  abstracts, 
or  at  least  that  expounded  in  this  work,  does  not  contemjilate 
the  marginal  divisions  used  in  the  compilation  of  English  ab- 
stracts, and  hence,  the  only  margin  is  the  narrow  strip  on  the 
left  hand  of  an  ordinarily  ruled  page  of  legal  caj),  which  is 
olten  used  for  lead  pencil  memoi-anda,  all  of  which  should  be 


538 


ABSTRACTS    OF    TITLE 


erased  before  the  abstract  is  returned  to  the  client.  It  wonhl 
scein  to  be  the  present  custom  of  English  counsel  to  make 
their  formal  requisitions  on  a  separate  sheet  of  paper,  which 
has  been  divided  longitudinally  by  being  folded  down  the  mid- 
dle. Upon  tlie  left  half  of  this  sheet,  counsel,  from  the  notes 
taken  in  the  course  of  perusing  the  abstract,  draws  his  ques- 
tions, inquiries,  objections,  etc.,  and  delivers  same  for  answers. 
The  vendor,  or  his  solicitor,  then  peruses  the  requisitions,  and 
proceeds  to  the  reply  to  them  on  the  right  half  of  the  sheet, 
the  questions  and  answers  being  numbered  in  consecutive  or- 
der, and  the  replies,  so  far  as  practicable,  being  wrilten  oppo- 
site to  the  requisitions.^  It  is  not  thought  that  this  is  practiced 
to  any  considerable  extent  in  this  country,  or  at  least,  if  prac- 
ticed, it  has  never  been  brought  to  the  attention  of  the  writer. 
In  a  modified  form  it  might  be  used  to  advantage. 

'  The  method  maybe  of  advantaofe  to  American  practitioners;  a  form, 
taken  from  Ball's  "  Popular  Conve3'ancer  "  (London,  L':577),  is  therefore  ap- 
pended. 

Brown  to  Jones. 
Requisitions  on  Title  and  Replies  thereto. 


Bequisitions. 

1.  The  lease  of  the  ....  day  of 

,  IS . . ,  does  not  appear  to  have 

been  reg-istered.  This  should  be 
done,  the  reference  should  be  sup- 
plied. 

2.  The  license  to  underlet  given 

by to ,  and  dated  the 

day  of 18..,  must  be  delivered 

up  on  completion,  and  the  vendor 
must  obtain  the  requisite  license  for 
the  present  assignment. 

3.  The  assignment  dated  the' . . . 
day  of ,  18 ,  and  made  be- 
tween   and purports  to  as- 
sign the  term  from  29th  September, 
1866,  whereas  the  original  term  is 
from  29th  September,  1863.  How  is 
this  accounted  for? 


Beplks. 

1.  This  lease  was  registered.  "We 
can  not  give  the  reference,  but  it  can 
readily  be  ascertained  by  the  usual 
search.     See  clause  —  of  contract. 

2.  This  wiU  be  done. 


B.  This  is  an  error.  The  term  is 
from  29th  September,  .I860,  and  the 
assignment  referred  to  in  the  requi- 
sition is  of  the  residue  of  the  term. 


OPINIONS   OF    TITLE. 


639 


§  8.  Answers  to  Requisitions.  "A  purchaser  is  entitled," 
observes  an  English  writer/  "  to  be  furnished  with  evidence 
of  facts  material  to  the  title,  whether  sucli  tacts  are  to  be  used 
as  positive  or  negative  ]')roofs,  and  the  vendor  is  bound  to  an- 
swer, to  the  best  of  his  knowledge,  any  relevant  question  uj^on 
the  subject  of  the  title,  and  to  furnish  snch  evidence  as  may 
be  in  his  power;  but  the  pni'chaser  must  confine  his  questions 
to  some  particular  defect,  and  not  call  for  a  general  exphuia- 
tion  of  matters  which  he  may  consider  requiie  to  be  ex- 
plained."^ The  foregoing  remarks,  though  made  in  relation 
to  the  English  laws  on  the  subject  of  sales  of  real  property, 
are  not  without  some  force  in  the  United  States,  but.  as  a  rule, 
and  unless  the  agreement  for  sale  otherwise  provides,  the  pur- 
chaser is  entitled  to  a  full  disclosure  of  everything  in  any  way 
material,  and  the  evidence  should,  so  far  as  practicable,  enable 
the  purchaser  to  deduce  a  good  title  of  record.  "Wliere  affida- 
vits, or  other  instruments  are  furnished  iu  answer  to  requisi- 
tions, such  instruments  should  be  recorded,  if  accepted,  as  the}' 
then  constitute  a  part  of  the  muniments  of  title.'    Statements 


4.  Is  the  vendor,  or  are  his  solic- 
itors, aware  of  any  charge  or  incum- 
brance, or  other  matter  affecting  the 
premises  sold  which  is  not  disclosed 
by  the  abstract  ? 

Andrew  Abbe, 

Solicitor  for  Purchaser. 
(Dated) 


4.  No.  It  is  pro-uniod  that  the 
purchaser  will  make  the  usual 
searches. 


CnAKT.ES  &  Daijwtn, 
Solicitors  for  the  Vendor. 
(Dated) 


It  will  be  ob'^erved.  the  example  just  given  is  of  requisitions  and  replies  upon 
a  leasehold  title. 


»  Seaborne  Vend.  &  P.  175. 

2 Green  v.  Pulsford,  2  Beav.  (Eng.) 
70;  Pearse  v.  Pcarse,  1  DeG.  &  S. 
(Eng.)  12.  These  matters  are  usu- 
ally arranged  beiorehand  by  what  is 
called  the  "Conditions  of  Sale,"  an 
instrument  resembling  what  is 
known  in  this  country  as  a  "Contract 
forSale,"(not  "Agreement  to  Deed") 


but  much  more  circumstantial  and 
explicit. 

*  As  suggested,  in  another  place, 
after  all  inquiries  have  been  made 
and  requisitions  supplied,  the  mat- 
ter thus  obtained,  or  such  portions 
as  are  susceptilile,  should  be  re- 
corded, and  a  sujiplemental  abstract 
of  same  made  and  app  ndcd  to  tho 


540  ABSTRACTS    OF   TITLE. 

not  under  oath  or  attested  by  any  solenniities  are  too  unsatis- 
factory, even  though  reduced  to  writinf^,  tlioui^h  sometimes 
from  necessity,  or  under  a  clioice  of  difficulties,  letters  are  ad- 
missible to  supply  information  or  furnish  data  for  missini^ 
facts.  Certificates,  particularly,  when  made  in  the  line  of  offi- 
cial duty,  may  be  received,  and  for  many  purposes  they 
would  he  prima  facie  evidence  of  the  facts  recited. 

§  9.  Analysis  of  Title,  Every  ])erson  who  has  ever  at- 
tempted to  critically  examine  an  abstract  consisting  of  twenty 
removes,  or  more,  must  have  experienced  some  difficulty  in 
endeavoring,  while  grappling  with  a  present  question,  to  still 
keep  in  view  the  past  course  of  title,  or  to  apply  it  toward 
the  solution  of  the  question  under  considenition.  A  master 
mind  possibly  miglit  be  able  to  successfully  encompass  the 
matter  and  from  chaos  bring  order  with  no  external  aids, 
but  to  the  average  lawyer  some  assistance  is  Irequently  indis- 
pensable, and  this  may  be  obtained  by  making,  what  ma}^  be 
called,  an  analysis  of  the  title,  as  he  proceeds  in  its  perusal. 
This  is  accomplished  by  a  chain,  on  which  is  noted  the  condi- 
tion of  the  ownership  of  the  land  after  every  conveyance,  and 
is  a  sort  of  balance  sheet  which  shows  the  state  of  the  title  at 
every  stage.  For  tracing  minute,  varied,  or  numerous  own- 
erships, it  can  not  well  be  dispensed  with,  and  its  use  can 
frequently  be  advantageously  supplemented  by  sketch  maps 
of  the  land  itself  It  is  believed  that  no  better  plan  exists  for 
preserving  at  every  stage  of  the  title  the  true  interests  of  the 
parties,  than  by  reducing  them,  at  every  step,  to  a  common 
denominator.  Should  any  of  the  parties  in  interest  b}'  inad- 
vertence, mistake  or  design,  convey  more  than  his  or  her  re- 
spective share,  or,  intending  to  convey  all,  should  convey  less, 
the  error,  mistake  or  fraud  is  instantly  detected,  and  the  con- 
fusion which  necessarily  must  prevail  in  subsequent  convey- 
ances, will  not  serve  in  the  slightest  to  distract  the  attention 
ot  counsel  or  set  him  trying  to  reconcile  the  irreconcilable  In'- 
making  six  go  into  four.     As  an  illustration,  take  the  case  of 

original.     This   would  make,    so  far      showing  all  the  defects,  which  must 
as  may  be,  a  perfected  and  coherent      be  remedied  afterward, 
title,  and  is  preferable  to  an  opinion 


OPINIONS    OF    TITLE.  541 

a  manufactni-iiig  site  in  a  cit}'.  In  tlie  course  of  business, 
many  partners  come  and  go.  Some  own  large  interests,  some 
small.  They  trade  among  themselves  and  purchase  interests 
from  each  other.  All  the  interests  are  undivided.  The  pur- 
chasers buy  interests  in  the  business,  but  incidentally  they 
purchase  corresponding  interests  in  the  real  estate  as  well. 
It  will  take  but  a  short  time  to  thoroughly  complicate  such  a 
title,  as  a  demonstration  will  show.  Suppose  the  abstract  re- 
vealed substantially  the  fullowing  facts: 

Kos.  1  to  5  show  a  conveyance  from  the  government,  and  a 
regular  investure  of  title  with  unbroken  chain  to  A.  B. 

No.    6.     A  subdivision  by  A.  B.     (Now  trace  one  lot.) 

No.    7.     A.  B.  to  C.  D.,  undivided  one  half. 

No.    8.     CD.  to  E.  F.,  undivided  one  fourth. 

No.    9.     E.  F.  to  G.  H.,  undivided  one  eighth. 

No.  10.     A.  B.  to  G.  H.,  undivided  one  half. 

No.  11.     C.  D.,  E.  F.  and  G.  II.,  a  mortgage  to  O. 

No.  12.     C.  D.  to  E.  F.,  undivided  one  half  of  one  half. 

No.  13.     C.  D.  to  I.  K.,  undivided  one  half  of  one  half. 

I.  K.,  the  last  grantee,  now  desires  to  have  his  title 
examined  with  the  result  shown  in  the  following  analysis. 
This  analysis  takes  no  note  of  errors,  but  is  simply  to  separate 
and  keep  distinct  the  various  ownerships: 

A]}^ALTSIS    OF    TITLE 

to 
Lot  6,  Block  Jt.2^  Original  Plat  of  the  City  of  Kenosha, 
^Vis.,  as  shown  by  the  annexed  abstract.     The  numbers  corre- 
spond to  the  numbers  of  the  removes  as  shown  in  theabstract. 


The  ownership  of  said  lot,  after  each  of  the   conveyances 
mentioned  in  said  abstract,  was  substantially  as  follows: 

1     I^umhers  1  to  5  show  reaular  investure  of  title  in  A.  B. 
to  No.  6  a  subdivision  by  him.  Lot  6  being  shown  on 

6  the  plat  of  such  subdivision. 


542  ABSTKACTS    OF    TITLE. 


7 

A.  B.,  h 
C.  D.,  i 

ylZi. 

Sept.  1,  1858. 

8 

A.B.A  =  \ 

C.  D.,  i  =  i 
E.  F.,  i  =  i 

1 

All. 

Dec.  13,  1858. 

9 

A.  B.,  1  =  i 
C.  D.,  i  =  f 

E.  F.,i^i 

J 

All. 

Feb.  14,  1859. 

10 

C.  D.,  i  = 

E.F.,i=' 

G.  H.,  J  and  ^ 

f 
=  1 

1 

All. 

Mag  10,  1859. 

11 

Mortgage. 

12 

E.F.,i  and  J  = 
G.H.,1^ 

=  1 

5 

1 

All. 

Subj. 

to 

mortgage. 

Aug.  27,  18.59. 

13 

G.  fl-.,  1  =  f 

1 

All  and  \ 
No  title 

excess. 
in  I.  K. 

Jan.  9,  1860. 

The  foregoing  illustration  is  necessarily  brief  and  simple. 
In  practice,  much  more  difiicult  problems  are  presented,  as 
where  the  abstract  consists  of  from  forty  to  fifty  removes, 
each  one  of  fractional  interests,  and  not  in  the  easily  under- 
stood parts  shown  in  the  example,  but  of  ninths,  fifteenths, 
etc.,  until  the  chain  presents  one  bewildering  maze  of  diverse 
fractional  interests.  In  no  other  way  known  to  the  writer 
can  these  unevenly  balanced  interests  be  harmonized  and 
presented  in  tangible  shape  than  by  the  method  of  reduction 
above  indicated.  Counsel  can  then  see  at  a  glance  the  actual 
interest  of  every  owner  at  every  stage  of  the  title.  He  can 
tell  if  any  have  conveyed  more  than  they  possessed,  as  well 
as  whether  any  interests  yefr  remain  in  parties,  who,  suppos- 
ing they  had  divested  themselves  of  all  title,  no  longer  claim 
ownership;  and  the  further  fact,  in  whom  the  present  title  of 
the  premises  rest,  and  the  extent  of  the  ownership  of  each. 
Thus,  in  the  example,  I.  K.  took  nothing  by  his  deed,  yet 
supposing  that  he  had  in  time  purchased  other  interests,  and 
bought  and  sold  from  and  to  others  of  the  present  parties,  as 
well  as  new  parties  who  subsequently  came  in,  this  surplus 
one  fourth,  or,  as  it  might  be  in  actual  experience,  one 
sixteenth,  or  even  a  smaller  interest,  would  have  become 
strangely  blended   with  the   legitimate   interests.     However 


OPINIONS    OF   TITLE.  643 

correct  the  opinions  of  Mr.  Sngden,  in  respect  to  note  t;il<in<»- 
on  the  perusal  of  English  abstracts,  it  must  be  apparent  they 
can  not  be  well  dispensed  with  under  the  American  system, 
and  of  all  the  devices  to  trace  title,  none  can  compare  in 
simplicity  and  thoroughness  with  the  simple  "analysis"  which 
has  been  ])reseiited. 

§  10.  Analytical  Chains.  Even  when  the  title  is  not 
complicated  by  a  multiplicity  of  small  ownerships,  if  it  be 
long  drawn  out,  that  is,  extending  over  a  long  period  of  years 
and  passing  through  many  hands,  some  kind  of  chain  is  gen- 
erally of  material  assistance  in  keeping  the  course  of  title 
prominently  before  the  examiner,  and  prevents  frequent  re- 
currence to  parts  of  the  abstract  that  have  alrcadj'  been 
passed  over.  This  can  be  fairly  accomplished  by  an  analytic, 
or  in  one  sense  synthetic,  chain,  showing  all  the  conveyances 
and  their  connection  with  each  other.  Whenever  an  adverse 
title  intrudes,  this  chain  will  be  a  great  help  both  in  keeping 
the  titles  separate  and  showing  their  general  course,  and  if 
that  event  occurs,  their  ultimate  union.  This  chain  may  be 
prepared  and  used  in  connection  with  the  analysis  of  title 
described  in  the  last  section,  or  it  may  be  compiled  on  a 
separate  sheet,  and  each  used  to  sup])lement  the  other.  The 
chain  ma}^  be  constructed  in  any  maimer  that  will  best  serve 
to  accomplish  the  desired  purpose,  but  a  very  poi)ular  method 
is  to  make  a  geometrical  diagram,  the  instruments  beinir 
represented  b}'  quadrangles,  and  the  connections  and  CiUirso 
of  title  by  straight  lines.  This  metliod  has  the  merit  of 
sim])licity,  and  presents  the  general  course  of  title  in  a  very 
clear  and  concise  manner.  The  quadrangles  bear  numbers 
witli  reference  to  the  abstract,  and  may  be  further  distin- 
guished l)y  the  names  or  initials  of  the  parties.  A  chain  pre- 
senting few  difficulties  might  be  made  somewhat  after  the  fol- 
lowing example: 


544 


ABSTRACTS    OF    TITLE. 


A]}^AZYSIS  OF  TITLE 

to 
Section  10,  TIN.,  R.  23,  E. 


Original  Title. 


Tax  Title. 


1 
17.  S.  to  A. 


2 

A  toB. 


3 

B  to   C. 


\ 

7 

Cto  D. 

BloE  Und  14. 

5 

DtoGUnd  y^. 

8 

Eto  F  Und}4. 

6-9 

Gto  H  Und  li 

Ft,  H     •■      '■ 


11 

state  to  I. 

12 

I  to  J. 

OPINIONS   OF   TITLE.  545 

§  11.  Sketch  Maps.  The  great  aid  derived  fro;n  sketch 
maps  lias  several  times  been  alluded  to  dnrin^  the  proi^ress 
3f  this  work,  aiid  in  all  cases  of  *'  snarls  ''  in  the  description 
3f  land,  as  well  as  in  keeping  counsel  ])osted  on  tlie  relative 
dimensions  of  the  property  conveyed  at  each  successive  re- 
move, they  arc  invaluable.  Their  aid  is  more  frequently  in- 
voked, in  abstracts  of  what  are  pojmlarly  termed,  "Agricult- 
ural lands,"  or  lands  which  are  still  referred  to  by  the  de- 
scriptions furnished  by  tlie  government  surveys,  but  the}-  will 
be  found  equally  useful  in  tracing  title  to  all  land  sold  by 
metes  and  bounds,  and  which  has  never  been  the  subject  of 
formal  resubdivision.  To  successfully  employ  these  maps,  it 
is  necessary  that  counsel  possess  a  little  knowledge  of  survey- 
ing and  understand  the  use  of  a  protractor  and  a  few  other 
simple  instruments.^  A  tracing  of  the  government  survey  will 
be  found  very  convenient  in  all  examinations,  and  if  counsel 
is  unable  to  procure  such  he  sliould  request  the  examiner  to 
furnish  a  sketch  of  same  in  connection  with  the  al)stract.  In 
like  manner,  sliould  he  feel  inadequate  to  the  task  of  prepar- 
ing the  sketches  of  the  property,  arrangements  should  be 
made  with  the  examiner  to  furnish  same.  In  no  case  should 
he  dispense  with  their  services  unless  he  thoroughly  under- 
stands the  condition  of  the  property  both  topographically  and 
with  reference  to  its  superficial  measurements,  and  in  every 
case,  where  it  can  be  done,  the  sketches  should  be  made  by 
himself  rather  than  by  an  assistant,  as  the  work  of  figuring 
out  the  dimensions,  tracing  the  courses,  and  locating  the  monu- 
ments is  of  incalculable  value  in  arriving  at  a  proper  conclu- 
sion and  a  thorough  understanding  of  the  "lay  of  tlie  land." 
The  maps  or  sketciies  should  be  preserved  with  the  analysis  and 
other  memoranda,  or  turned  over  to  the  client  in  connection 
therewith  if  such  should  be  the  understanding.  In  ease  they 
are  given  to  the  client,  the  particular  tracts  under  consideration 

'  Mr.  Curwen  recommends  only  a  most  convenient,  on  ac'oiint  of  the 

semicircular   protractor,    a    pair  of  accuracy  with  whicli.  by  means  of  it, 

dividers,  and  a  scale  of  equal  parts.  links,  being  the  hurulrodth  parts  of 

A  scale  divided  into  fiftit;th   parts  a    chain,    can    be  measured.      See 

of   an    inch    he     recommends     as  Curwen  on  Absts.  21. 
35 


546  ABSTRACTS    OF    TITLE. 

should  be  colored  or  shaded,  to  distinguish  them  from  other 
parts  of  the  map,  and  the  dimensions,  whenever  practicable, 
marked  on  the  lines  or  courses. 

§  12.  Preservation  of  Memoranda,  "  It  is  desirable,"  say 8 
Mr.  Lee,'  "that  the  purchaser,  if  his  contract  is  completed, 
should  carefull)'-  preserve  not  only  the  abstract  itself,  but  all 
queries  and  objections,  with  tlie  ariswers  or  statements  made 
respecting  the  title,  as,  after  alapseof  time,  these  observations 
and  answers  may  of  themselves  be  of  some  weight  in  deter- 
mining future  questions."  The  reader  will  understand,  how- 
ever, that  answers  and  statements  made  in  response  to  queries 
and  objections,  play  a  far  more  important  part  in  the  accept- 
ance of  English  titles  than  they  possibly  could  in  the  matter 
of  American  titles.  The  statements  are  signed  bv  the  solic- 
itors  or  parties  making  tliem,  and  are  regarded  for  certain  pur- 
poses as  a  part  of  the  abstract  to  which  they  are  usually  an- 
nexed. The  only  memoranda  that  would  be  of  material  value 
to  the  purchaser  would  consist  of  the  analysis  of  the  abstract, 
or  of  the  title,  and  these,  when  properly  and  carefully  made 
would  undoubtedly  be  a  desirable  acquisition  and  well  worthy 
of  preservation.  They  would  not  only  be  of  great  assistance 
to  the  purchaser  by  enabling  him  to  peruse  the  abstract  in- 
telligibly at  his  leisure,  but  would  also  tend  to  materially  re- 
duce the  expense  of  subsequent  examinations.  But  being  the 
private  memoranda  of  counsel,  he  would,  of  course,  be  under 
no  obligation  to  deliver  them  to  the  client,  however  valuable 
they  might  be,  as  his  opinion  is  all  that  is  asked  and  presum- 
ably all  that  is  paid  for;  the  methods  by  which  he  arrived  at 
such  opinion,  or  the  instrumentalities  employed,  are  his  own 
property  to  be  given  or  withheld  as  he  may  see  fit. 

§  13.  Passing  the  Title.  In  examining  a  title,  counsel  is 
frequently  compelled  to  admit  evidence  which,  although  it 
may  be  satisfactory  as  a  proof  of  the  fact,  yet  would  not  be  re- 
ceived in  a  court  of  justice;  for  example,  afiidavits  as  to  facts 
disclosed  inferentially,  and  to  prove  deaths,  marriages,  etc. 
Such  affidavits,   though  inadmissible  under  the  rules  of  evi- 

1  Lee  on  Ab.  of  Tit.  *  3. 


OriNIOXS   OF   TITLE. 


547 


dence,  are  valuable  from  the  reason  tliat  tliey  show  that  Yiv- 
in<y  persons  can  at  the  time  establish  the  facts  tlierein  recited. 
On  the  otlier  hand,  in  receiving  evidence  admissible  at  law, 
counsel  is  compelled  to  submit  the  latter  to  a  severer  test  tliaa 
it  would  be  subject  to  upon  an  ordinary  trial,  for  it  is  not  a 
contest  between  two  litigants  which  has  the  better  title,  but  a 
calm  consideration  by  a  man  in  his  chambers,  whether  the 
seller's  title  is  a  safe  one  against  all  the  world.' 

§  14.  What  Constitutes  a  Valid  Title.  "It  is  always  pre- 
sumed," says  Mr.  Lee,^  "  when  a  sale  is  made,  that  the  vendor, 
in  the  absence  of  stijnilations  to  the  contrarj',  undertakes  to 
make  out  a  good  title  to  what  he  sells,  ^.  e.,  a  marketable  title 
good  both  at  law  and  in  equity."  It  is  for  the  ])ur])ose  of 
determining  this  quality  in  regard  to  the  proft'ered  title  that 
counsel  is  asked  to  investigate  it  prior  to  the  consummation  of 
the  sale.  "I  am  of  the  opinion  that  John  Smith  possessed  a 
good  and  valid  title,"  etc.,  is  a  familiar  exj)ression  in  attor- 
ney's certificates  of  opinion,  and  they  are  the  controlling 
words  that  induce  the  purchaser  to  accept  the  vendor's  deed. 
Therefore  the  inquiry,  what  is  a  "good  and  valid"  title?  is 
pertinent  in  this  connection.  It  may  be  stated  in  answer,  that 
the  title  disclosed  should  extend  to  show  a  full  and  perfect 


»  2  Sugcl.  V.  &  P.  16. 

2  Lee  on  Ab.  *8.  "Under  the 
term  purchaser,  the  law  generally  in- 
cludes a  mortgagee,  and  also  a  lessee, 
to  the  extent  of  their  respective  in- 
terests; to  that  extent  they  are  pur- 
chasers; but  the  rules  of  law  and  the 
evidence  of  title,  as  they  relate  to  a 
lessee,  are  very  different  from  the 
rules  and  the  evidence  relating  to  a 
purchaser  in  the  common  accepta- 
tion of  the  term,  as  likewise  to  a 
mortgagee;  but  the  title  and  evidence 
usually  required  on  behalf  of  a  pur- 
chaser and  a  mortgagee  are  nearly 
similar.  Some  books  indeed  have 
stated  that  a  purchaser,  commonly 
so  called,  should  require  the  strictest 


evidence  of  title,  because  all  his  in- 
terest depends  upon  his  power  of 
making  out  a  strict  title  on  a  future 
sale;  and  that  a  mortgagee,  seldom 
advancing  money  to  the  full  value  of 
the  estate,  may  well  dispense 
with  the  most  complete  evidence  of 
title,  as  an  imperfect  title  might 
probably  fetch  the  amount  of  his  ad- 
vances. Others  say  that,  as  a  mort- 
gagee can  never  gain  anything  be- 
yond the  amount  of  the  money  lent, 
he  ought  to  run  no  risk  of  losing 
that,  not  even  the  sliyhto>t;  that  a 
purchaser  takes  the  estate  for  better 
and  for  worse,  and  therefore,  rather 
than  reject  a  title  for  want  of  suffi- 
cient evidence,  he  may  be  sometimes 


548  ABSTRACTS   OF   TITLE. 

riglit  of  property  and  present  possession  vested  in  the  vendor.' 
It  must  also  embrace  the  entire  estate  or  interest  sokl,'  and 
that  free  from  the  lien  of  all  burdens,  charges  or  incum- 
l)rances,^  and  should  not  only  be  free  from  litigation/  but 
from  palpable  defects^  and  grave  doubts.**  It  should  consist 
of  both  the  legal  and  the  equitable  titles/  and  be  fairly  dedu- 
cible  of  record.*  It  maj^  still  be  a  valid  title,  even  thongh 
cliarged  with  incumbrances,^  but  in  that  ev^ent  the  opinion 
should  discriminate  and  the  title,  if  found  good  otherwise, 
must  be  certified  as  "  subject  to  the  lien,"  etc.,  of  the  incum- 
brance. A  title,  to  be  valid,  need  not  necessarily  be  deduci- 
ble  of  record,  for  a  prescriptive  title  may,  under  proper  con- 
ditions, be  as  strong  as  a  title  by  grant,^°  yet  such  titles  are 
always,  unless  there  has  been  a  continuous  holding  for  at 
least  thirty  years,  liable  to  defeat  from  undisclosed  defects 
and  assertions  and  claims  by  heirs,  or  pei'sons  under  disability. 
§  15.  Flaws.  This  term  may  be  aptly  used  to  describe  an 
apparent  gap  or  break  in  the  chain,  which,  when  occurring, 
constitutes  in  many  cases  an  insurmountable  impediment.  A 
requisition  must  in  all  cases  be  made  for  the  missing  links, 
whether  the  interruption  be  partial,  as  where  one  of  several 
shown  to  possess  a  unity  of  interest  fails  to  convey;  or  entire, 
as  where  no  privity  of  title  is  shown  to  exist  between  present 
and  past  owners.  Where  the  original  title  fails,  and  requisi- 
tions for  the  purpose  of  showing  connection  are  returned  un- 
satisfied, the  title  asserted  becomes  adverse  to  the  original 
title  and  necessary  inquiries  in  pais  must  be  made  to  show 
a  good  title  by  adverse  possession.  An  apparent  break  in  the 
chain  often  occurs  in  case  of  descents,  the  estate  of  the  intes- 

aclvised  to  take  it,  and  speculate  for  St.  363. 

a  rise  in  value."     Lee  on  Ab.  (Eng.)  ^  Smith  v.  Robertson,  23  Ala.  312; 

*  18.  Holland  v.  Holmes,  14  Fla.  390. 

^  Delevan  v.  Duncan,  49  N.  T.  485j  ^  Gans  v.  Renshaw,  2    Barr  (Pa.), 

Davis  V.  Henderson,  17  Wis.  105.  34;    Scott    v.    Simpson,    11    Heisk. 

2  Taft  V.  Kessel,  16  Wis.  273.  (Tenn.)  310. 

3  Roberts  v.  Bassett,  105  Mass.  407;  '  Taft  v.  Kessel,  16  Wis.  273. 
Jones  V.  Gardner,  10  Johns.  266;  «  Maiiin  v.  Judd,  81  111.  488. 
Davidson  v.  Van  Pelt,  15  Wis.  341.  ^  Caal  v.  Higgins,  23  N.  J.  Eq.  SOS. 

*  Speakman  r.  Forepaugh,  44  Pa.         ^°  S..rman  v.  Kane,  86  N.  Y.  57. 


OPINIONS    OF    TITLE.  549 

tate  never  having  been  settled  in  probate;  and  wlien  the  only 
lieirs  are  married  women,  and  a  conveyance  is  subsequently 
made  by  them,  if  no  description  of  the  person  or  cajmcity  is 
given,  the  break,  upon  the  record,  will,  of  course,  be  absolute. 
When  a  grantee  under  an  unrecorded  land  contract  has  gone 
into  possession,  but  no  deed  has  ever  been  made,  the  same  state 
of  facts  exist  in  respect  to  cunvevances  by  him.  Again,  and 
this  case  is  bj'  no  means  uncommon,  simjileor  ignorant  people 
frequently  go  into  possession  under  deeds  which  they  never 
cause  to  be  recorded,  which  apparentl}'  breaks  the  continuity 
of  interest  and  title.^  Requisitions,  in  a  majority  of  instances, 
will  suffice  to  discover  the  missing  evidence,  but  when  they 
can  not  be  found,  possession  and  claim  of  title  under  the 
statute  of  limitations  must  be  relied  on. 

§  16.  Clouds  upon  Title.  In  the  examination  of  abstracts 
counsel  frequently  Unds  minor  defects,  invalid  instruments, 
and  abortive  attempts  at  conveyance,  which,  while  not  reach- 
ing the  merits  of  the  title,  nor  yet,  in  many  cases,  casting 
any  suspicion  upon  it,  still  tend  in  a  measure  to  obscure  it. 
These  defects  are  known  as  "clouds  upon  the  title,"  and  it  is 
the  duty  of  counsel  to  detect  and  point  out  such  defects  that 
projier  steps  may  be  taken  to  eradicate  them.  The  opinion 
should  properly  discriminate  between  deeds  which  are  defect- 
ive merel}',  or  which  might  be  made  tlie  foundation  of  a  valid 
title  in  connection  with  other  circumstances,  and  those  wliich 
are  absolutely  void,  for  the  legal  eifect  of  the  two  classes  is 
not  the  same.  As  a  gcnci-al  rule,  a  deed,  lien,  charge  or  in- 
cumbrance of  any  kind,  to  cast  a  shadow  upon  title,  so  as  to 
give  the  owner  relief  in  equity,  must  be  one  that  is  regular 
and  valid  upon  its  face,  but  is,  in  fact,  irregular  and  void  from 

^  This  is  frequently  enconntoreil  at  never  caused  to  be  recorded.    The 

the  very  commencement  of  the  title.  patent  they  never  called  for,  and  thus 

The  original  settlers  and  preomptors  matters  were  allowed  to  remain  f.r 

of  public  lands  were,  in   many  in-  years.     The  initial  statements  taken 

tances,  careless  and  sometimes  igno-  from  the  Government  Tract  Hook  will 

rant  of  the  proper  steps  to  be  taken  always  fuin"sh  a  c'aw  to  a  bri'ak  of 

to  display  and  pi-esei-ve  their  title  of  this  kind,  ann  a  ci'rt  tied  cui>.v  of  the 

record.     They  went   into  possession  patent  can  be  ob  ,iind  by  any  person 

under  a  receiver's  receipt,  which  they  showing  himself  to  be  entitled  to  it. 


550  A];STRACTS    OF    TITLE. 

c-ircnmstaiices  which  liave  to  be  proved  by  extrinsic  evidence.' 
If  the  invalidity  plainly  appears  on  the  face  of  the  instrn- 
nicnt,"  or,  althoun^h  not  apparent  on  the  \vrltin<^,  if  it  is  shown 
by  any  of  the  preliminaries  which  attend  it,  or  in  any  of  the 
links  which  connect  it  with  the  title,'  so  that  no  lapse  of  time 
nor  change  of  circumstances  can  weaken  the  means  of  defense, 
such  an  instrument  does  not,  in  a  just  sense,  even  cast  a  cloud 
upon  the  title,  or  diminish  the  security  of  the  owner  of  the 
land,*  for  the  rule  is  well  settled  that  such  an  instrument  can 
work  no  mischief,  and  that  no  occasion  arises  for  eqnitable  in- 
terference for  its  removal  or  cancellation.^  It  is  not  recom- 
mended, however,  that  every  matter  appearing  in  the  ab. 
stract,  and  shown  thereby  to  be  irregular  and  void  upon  its 
face,  be  disregarded  for  that  i*eason,  for  the  legitimate  prov- 
ince of  the  opinion  is  to  specifically  show  the  legal  effect  of 
all  instruments  or  proceedings  tliat  to  the  non-professional 
reader  may  seem  suspicious,  and,  by  pointing  out  such  mat- 
ters and  showing  their  invalidity,  to  allay  his  fears  and  con- 
firm his  confidence  in  the  title.  It  is  for  this  very  purpose, 
that  intending  purchasers  seek  the  aid  of  counsel,  and  every 
doubt  or  question  that  may  arise  to  the  legal  mind  should 
find  expression  in  the  opinion.  Many  questions  of  this  char- 
acter, which  formei'ly  could  be  very  summarily  disposed  of, 
now  require  a  very  difierent  treatment,  from  the  fact  that  in 
a  large  number  of  States  the  statute  has  made  deeds  and  con- 
Yeya.v\ee?>  prima  facie  evidence  of  the  facts  therein  recited,  and 
not  only  of  their  own  validity,  but  of  every  anterior  proceed- 

^Min-phy  v.   Mayor,   &c.,  of  Wil-  and  upon  which  the  validity  of    the 

mington,    10  Reporter,  765;  Crooke  adverse  title  depends,  are  shown  ta. 

V.  Andrews,   40  N.  Y.  547;  Sanxay  be  void    for  jurisdictional  defects. 

V.  Hunger,  42  Ind.  44;  Davidson  r.  Florence   v-    Paschal,    50  Ala.    28; 

Seegar,  15  Fla.  671.  Hatch  v.  City  of  Buffalo,  38  N.  Y. 

2R.  R.  Co.  V.  Schuyler,    17  K  Y.  276. 
599,  *  R.  R.   Co.  V.  Schuyler,  17  N.  Y. 

3  Fonda  v.   Sage.  48  N.   Y.  173;  599;Bogertr.  City  of  Elizabeth,  27 

Griswold  V.  Fuller,  33  Mich.  268;  as  N.  J.  Eq.  568. 
where  title   is   deduced  through   a  ^po^da  v.  Saare,    48  N.    Y.  173; 

judicial  sale,  where  the  proceedings  Cohen  v.  Sharp,  44  Cal.  29. 
which  were  the  basis  of  such  sale, 


OnXIONS    OF    TITLE.  551 

ing  nfcessarj  to  constitute  such  validity.  Whenever  a  deed 
is  primary  evidence  of  title  and  regularity  in  tlie  prior  pro- 
ceedings, and  can  only  be  overcome  by  proof  of  certain  facta 
dehors  the  deed,  a  cloud  is  always  created,'  for  though  the  in- 
strument is  really  void,  it  has  an  ostensible  validity,  and 
throws  a  doubt  over  the  title,  and  not  only  can  be  used  for  vex- 
atious purposes,  but  is  such  a  title  that,  if  asserted  by  action 
and  put  in  evidence,  would  drive  the  other  party  to  the  pro- 
duction of  his  own  title  in  defense.^ 

§  17.  Inquiries  in  pais.  Technically,  when  an  attorney  is 
called  upon  to  pass  the  title  to  land  under  a  given  state  of 
facts  as  presented  bj  the  abstract,  he  is  not  supposed  or  pre- 
sumed to  extend  his  investigations  bej'ond  what  is  directly  or 
inferentially  disclosed  therein.  The  absence  of  requisite  links 
in  the  chain  of  title  calls  for  inquiries  respecting  same,  but  the 
existence  of  unrecorded  evidence,  or  of  equities  not  a])parent 
or  fairly  dcducible,  do  not  legitimately  come  within  the  prov- 
ince of  an  examining  counsel.  It  is,  however,  strongly  recom- 
mended, that  in  addition  to  the  inquiries  and  requisitions 
made  during  the  perusal  of  the  abstract,  and  which  are  raised 
by  the  disclosures  therein  made,  a  further  iixpiiry  be  directed 
to  the  present  possession  and  occuj)ation  of  the  land  under 
examination.  A  due  observance  of  this  sufjirestion  will  erive 
greater  stability  to  the  opinion,  and  may  in  many  cases  prove 
a  mild  preventive  of  a  long  and  bitter  lawsuit.  A  long  series 
of  adjudicated  cases  confirm  the  doctrine,  that  open  and 
exclusive  possession  of  land  affords  notice  of  the  claim  of 
the  person  so  in  possession,'  and  the  purchaser  of  land  at  the 
time  adversely  held  by  another,  who  does  not  inquire  of  the 
party  in  possession  as  to  his  title,  will  not  be  considered  as  a 
Jjona  fide  purchaser,  notwithstanding  he  may  have  examined 
the  registry  of  titles.*     The  registration   laws  are  designed 

»Tilton  r.  R.    R.    Co.    3  Sawyer-  r.  Fellows,  15  Vt.  525;    Hackett  v. 

(C.  Ct.),  22.  Callender,  32  Vt.  97.     The   nile  is 

'Lick  V.  Kay,  43  Cal.  83.  the  same  both  at  law  an<l  in  equity: 

3  Fritchard  r.  Brown,  4  N.  H.  397;  Griswold  r.  Smith,  10  Vt.  4M. 

Redden  v.  Miller,  95  111.  336;    Ma-  *  Russell  r.  Sweezy.  22  Mich.  235; 

ghee  V.  Robinson,  98  111.  458;  Pinney  Warren  c.  Richmond,  53  111.  52. 


552  ABSTRACTS   OF   TITLE. 

only  to  protect  pnrcluisers  af^ainst  latent  equities;  liencc,  nn- 
recorded  conveyances  are  void  as  against  subsequent  ])ur- 
chasers  without  notice,  and  while  in  a  few  instances  courts 
ma_y  be  found  holding  strongly  against  the  doctrine  of  con- 
structive notice  arising  from  possession  merely/  though  ad- 
mitting such  to  be  competent  for  the  consideration  of  a  jury, 
in  connection  with  direct  evidence  of  actual  notice,  a  vast 
preponderance  of  authority  sustains  the  principle,  that  a  pur- 
chaser from  the  record  owner  is  bound  to  notice  the  possession 
of  another,  and  takes  subject  to  the  right  indicated  l)y  such 
possession.^  In  any  event  the  safe  course  is  to  make  tlie  in- 
quiry. "It  is  not  to  be  supposed,"  says  Itichardson,  C.  J., 
"that  any  man  who  wishes  to  purchase  land  honestly,  will 
buy  it  without  knowing  what  are  the  claims  of  a  person  who 
is  in  the  open  possession  of  it.  It  is  reasonable,  if  men  buy 
in  such  cases  without  inquiry,  that  they  should  be  presumed 
to  liave  known  everything  which  they  might  have  learned 
upon  due  inquiry,"^  "  and  one  important  evidence  of  title  to 
an  improved  estate,"  continues  Shepley,  J.,  "is  the  possession 
of  it.  When  one  person  purchases  of  another  who  is  not  in 
possession,  he  is  put  upon  inquiry  into  the  cause  of  such  ap- 
parent defect  of  a  perfect  title."*  When  land  is  vacant  or 
unoccupied,  no  presumption  can  arise  against  the  legal  title.^ 
§  18.  Continued — Mechanic's  Liens.  It  has  been  held  in 
a  late  case,**  that  a  party  purchasing  premises  on  which  build- 
ings are  in  process  of  erection,  having  knowledge  of  the  same, 
is  bound  to  make  inquiry  as  to  the  rights  of  parties  furnishing 
materials  or  performing  work  thereon,  and  that  such  person 

'Pomeroyt'.  Stevens,  11  Met.  244;  *  Matthews  v.  Demerritt,  22  Me. 

Glass  V.  Hurlbut.  102  Mass.  34;  Clark  312. 

V.  Bosworth,  51  Me.  628.  ^  White  v.  Fuller,  38  Vt.  201. 

2Pinney  v.  Fellows,    15  Yt.  525;  ®  Austin  r.  Wohler,  5  Bradw.  (TIL 

Russell  V.  Sweezy,    22  Mich.    235;  App.)300.     A  mechanic  may  file  his 

Redden  v.  Miller,     5  111.  336;    Per-  Hen  against  the  person  who  held  the 

kins  V.  Swank,   43   Miss.  349;    0'-  legal  title  when  the  work  was  com- 

Rourke  v.  O'Conner,   39  Cal.  442;  menced,  and  he  is  not  bound  to  in- 

Happin  v-  Boty,  25  Wis.  573;   Ed-  quire  further  or  take  notice  of  any 

wards  v.  Thompson,  71  N.  C.  177.  subsequent  conveyances  of  the  prop- 

^  Pritchard  I'.  Brown,  4  N.  H.  397;  erty:     Fourth  Ave.  Bap.  Church  o. 

Russell  V.  Ransom,  76  111.  168.  Schreiner,  88  Pa.  St.  124. 


OPINIONS    OF    TITLE.  653 

is  cliar:;ed  with  constructive  if  not  actual  notice  of  their  lien. 
Fui'ther,  that  a  sale  of  property  after  the  lien  is  fixed,  to  one 
coirnizant  of  same,  ^ives  him  no  riirhts  as  airainst  the  lien. 
Tills  is  in  consonance  with  the  s^enei-al  doctrine  on  the  subject 
of  mechanic's  liens,  which  provides  that  the  lien  shall  take 
effect  from  the  time  of  the  commencement  of  the  work,  and 
that  no  sale  or  transfer  thereafter  is  snlfioient  to  divest  it.' 

§  19.  Continued — Homestead.  It  will  be  remembered 
that  in  several  of  the  Suites  the  rii^ht  of  homestead  is  a 
special  estate  rcqnirini^  a  special  release  to  divest,  and  in 
other  Spates,  where  it  is  regarded  merely  as  a  statutory  ri;;ht 
of  exemption,  certain  formalities  are  expressly  necessarj'  to  a 
waiver.  Where  such  laws  obtain,  and  the  conveyances  make 
no  reference  to  the  homestead,  even  though  the  possession  of 
the  land  be  shown  to  be  in  the  parties  conveying,  a  further 
inquiry  must  be  made  as  to  the  character  of  the  possession, 
and  a  special  release  or  waiver  of  the  homestead  right  ob- 
tained when  such  in(|niry  exjn'cssly  or  impliedly  discloses  a 
homestead  occu]>ancy. 

§  20.  Printed  Copies.  "When  large  subdivisions  are  made, 
for  general  sale  to  purchasers  of  small  lots,  it  has  now  be- 
come customary  to  du])licate  the  original  abstract  to  the  en- 
tire tract  by  printed  copies.  Tliis  is  done  to  avoid  the  ex- 
pense of  a  separate  search  for  each  lot  of  the  subdivision  as 
well  as  a  scrivener's  copy  of  the  original,  and  it  is  claimed  that 
such  printed  copies  are  far  more  reliable  and  trustworthy 
than  where  a  written  co]>y  is  made  from  the  original  for 
every  transfer.  Where  the  work  is  performed  consc'entiously 
and  carefully  this  is  probably  true,  yet  the  great  mass  of  the 
profession  have  set  their  faces  strongly  against  the  use  of 
]-»rinted  copies  and  many  refuse  to  pronounce  upon  a  title  dis- 
closed by  them,  unless  the  original  is  also  produced  at  the 
same  time  for  comparison  and  inspection.  This  strongly 
grounded  prejudice  arises  from  the  fact  that  the  temptation 
for  the  interpolation  of  foreign  matter,  or  the  su|>i>ression  or 
expurgation  of  original  matter,  is  so  great,  that  unscrupulous 

'  nunkloe  r.  Crano.  103  Mass.  470;       v.  Williams,  2  Daly  (N.  Y.),  oG7. 
Thleiui.in  v.  Carr,  75  111.  385;  Mehan 


554  ABSTRACTS   OF    TITLE. 

parties  not  infreqnentl}'^  do  not  hesitate  to  resort  to  sucli  ex- 
pedients to  conceal  the  defects  of  imperfect  titles.  A  printed 
copy,  if  made  by  an  honorable  and  responsible  person,  who, 
at  the  close  of  such  copy  appends  a  certificate  of  verification, 
loses  some  of  its  objectionable  features,  yet  this  is  but  a  poor 
protection,  as  the  printer  merely  presents  what  he  finds,  and 
if  foreiofn  matter  has  been  introduced  into  the  orio-inal  it  will 
of  course  be  re]n'oduced  in  the  duplicate.  Nor  does  the  fact 
that  a  comparison  of  such  duplicate  with  the  original  has 
been  made  by  a  notary,  and  of  which  fact,  a  certificate  under 
his  hand  and  official  seal  accompanies  the  cojiy,  make  the 
copy  much,  if  any,  more  reliable.  In  both  of  these  instances 
the  opportunities  for  fraud  and  imposition  are  present,  while 
ignorance,  carelessness,  mistake  and  accident  may  all  cons2:)ire, 
whei-e  no  bad  faith  exists,  to  render  such  copj'  inaccurate  and 
unreliable.  But  as  printed  copies  will  continue  to  be  used, 
and  as  in  many  instances  the  cost  of  an  original  abstract 
would  be  equal  to  the  price  of  the  land,  care  should  be  ob- 
served to  see  that  every  precaution  has  been  taken  to  insure 
the  reliability  of  such  copy  and  prov^e  its  accuracy.  This 
can,  in  a  large  measure,  be  successfully  accomplished  by  a 
verification  of  same  by  the  examiner  who  compiled  the  oiig- 
inal,  and  it  is  recommended  that,  in  every  instance,  where  a 
printed  copy  is  offered  in  support  of  title,  a  comjjarison  be 
first  made  by  the  examiner,  and  a  certificate  under  his  hand, 
that  same  is  a  true  copy,  be  appended  thereto.  To  insure 
further  accuracy  the  examiner  should  write  his  name,  or  at 
least  his  initials,  upon  every  page  or  sheet  of  the  copy,  and  if 
after  all  this,  imposition  is  still  practiced,  counsel  will  at 
least  have  the  satisfaction  of  knowing  that  the  imposition 
was  beyond  his  power  to  prevent  and  that  he  has  fully  per- 
formed his  duty  in  the  matter. 

§  21.  Framing  Opinions.  After  the  abstract  has  been 
thoroughl}^  perused,  the  inquiries  answered,  the  requisitions 
satisfactorily  supplied,  and  the  relative  rights  of  parties  de- 
termined, counsel  should  proceed  to  formulate  his  opinion  in 
a  connected  and  orderly  manner.  This  will  include:  first,  a 
concise  caption  or  title,    similar  to    that   which  prefaces    the 


OPINIONS    OF    TITLE.  555 

examination,  describing  tlie  object  and  purport  of  the  o])ii)iun. 
Then  fulluws  the  result  of  his  investigations,  and  here  siionld 
be  stated  all  the  defects  and  irregularities  which  he  may  deem 
worthy  of  notice  as  affecting  the  title.  Finally  comes  the 
formal  opinion,  which  should  be  as  concise  and  terse  as  pos- 
sible, and  based  upon  the  abstract  and  the  defects  or  other 
matters  noted  in  the  stating  part  of  the  opinion.  Should  the 
exigencies  of  the  case  require  it,  or  the  client  so  direct,  coun- 
sel may  add  such  directions  or  suggestions  as  to  liini  may 
seem  expedient  in  perfecting  what  the  abstract  shows  to  be 
an  imperfect  title,  but  it  is  suggested  that  the  better  way  is 
to  communicate  such  information  or  directions,  together  with 
any  hypothetical  o])iiiions,  by  a  separate  writing,  and  con  line 
the  opinion,  which  it  is  proposed  to  annex  to  the  abstract, 
solely  to  the  state  of  the  title  which  the  abstract  presents. 

§  22.  Opinions  of  Title.  A  formal  opinion  upon  the 
merits  of  the  protl'ered  title  does  not  seem  to  have  been  con- 
tem])hitc(l  by  theEiigiish  writers  on  the  subject  of  abstracts, 
nor  by  those  American  writers  who  have  heretofore  ventured 
*o  touch  upon  the  theme,  and  the  same  is  doubtless  an  out- 
growth of  "western  civilization."  The  queries,  objections, 
requisitions,  etc.,  of  an  English  examiner  in  a  measure  takes 
the  place  of  a  formal  opinion  as  they  tend  to  note  and  point 
out  defects,  and  make  suggestions  whereby  defects  may  be  rem- 
edied and  missing  links  supplied.  But,  as  abstracts  are 
now  prepared,  a  carefully  framed  opinion  is  an  inseparable 
incident  and  a  fitting  climax  of  every  examination.  There 
are  two  methods  of  framing  opinions  of  title,  both  of  which 
are  in  general  use.  The  first,  and  most  common,  consists  of 
statements  based  upon,  and  annexed  to,  a  formal  abstract,  and 
is  made  by  counsel  after  a  perusal  of  the  same;  tlie  second,  is 
where  the  examiner,  after  investigating  the  title,  by  personsl 
examination  of  the  records  or  of  his  own  indices  thereto, 
places  the  title  in  some  individual  named,  subject  to  whatever 
impairments  he  may  find  of  record.  This  latter  method  is  also 
known  as  "  certifying  the  title."  No  chain  or  allirmative  evi- 
dence is  usually  sliown  in  such  cases.  Frequently  such  cer- 
tificate is  based  upon  a  directed  assuuiptiou  of  title  in  a  cer- 


556  ABSTRACTS    OF   TITLE. 

tain  person  at  a  certain  date,  and  the  examiner  certifies  from 
liis  examination  of  the  records  from  such  date.  In  the  latter 
case,  counsel  assumes  the  dual  oflice  of  examiner  and  aitornc}', 
and  in  many  cities,  where  no  special  chiss  of  examinitii^  con- 
veyancers exists,  all  ahstracts  and  examinations  are  made  in 
this  manner.  The  plan  has  little  to  recommend  and  much  to 
condemn  it,  and  in  the  opinion  of  the  writer  more  satisfactory 
resnlts  are  obtained,  at  least  in  populous  and  active  cities,  by 
a  thorough  disassociation  of  abstract  maker  and  counsel.^  An 
opinion  of  title  made  in  the  manner  just  described  would  be 
prepared  soujewhat  in  the  following  manner: 

OPINION  OF  TITLE 

to 
Lots  17  and  IS,  Bloch  3,  Toivn  of  Ilijde  Park,  CooJc  County, 

Ills. 


By  rllrectlon  of  William  P.  Smith,  at  whose  request  this 
opinion  is  given,^  it  is  assumed  ivithout  examination,^  that  on 
June  11,  1870,  the  Trustees  of  the  Town  of  Hyde  Park  held 
a  good  title  to  said  Lots  17  and  18,  free  from  incumbrance. 
From  an  examination  of  the  Records  of  Cook  County,  Ills., 
(or,  of  our  Indexes  to  the  Records,  etc.)  of  Deeds,  Judgments, 
and  Tax  Sales,  made  xupon  the  above  stated  assumption,  we 
conclude  that  tJte  title  to  said  Lots  is  now  vested  in  John  F. 
Hanson,  suhject  to  defects.,  if  any.,  existing  in  the  execution 
or  acknowledgment  of  the  following  deedj  {or  subject  to  the 
lien  of  the  following  mortgage,  etc.) 

^  Possibly  the  writer's  experience  of  contract  existing  between   client 

has  tended  to  prejudice  him  in  favor  and  counsel,  and  prevents  claims  for 

of  a  system  with  which  he  has  been  damages  being    asserted   by    third 

closely  associated,  and  whose  most  parties,   who  may  have  purchased 

intricate    movements    he    has     for  or  advanced  money  on  the  assurances 

years  contemplated,  but  from  what  of  the    certificate.      See   Bank    v. 

be  has  seen  of"  Certificates  of  Title,"  AVard.  100  Q.  S.  195. 

he  is  strongly  inclined  to  condemn  ^  In  every  case  where  an  assmnp- 

their  use.  tion  is  made  it  should  be  so  s'ated, 

*  This  is  a  matter  of  protection  to  while  it  is  always  advisable  to  state 

the  examiner.     It  shows  the  privity  as  well  that  same  has  been  done  by 


OriXIOXS   OF   TITLE.  557 

Here  follows  an  abstract  or  summary  of  tlic  deei.l,  mort- 
U'a^e,  lien,  judgment  or  other  matter,  which,  in  tlie  opinion  of 
the  ]:)erson  certifying,  impairs  or  clouds  the  title  of  the  in- 
dividual in  whom  it  rests.  After  this,  any  special  matter 
by  way  of  qualilication  or  explanation,  may  be  inserted,  which 
should  be  followed  by  the  date  of  the  examination  and  the 
examiner's  signature.  In  these  certificates  a  wide  option  is 
left  with  the  examiner,  and  in  this  lies  the  chief  source  of 
danger.  lie  may  regard  or  disregard  all  such  instruments  as 
he  ma}'  see  fit,  passing  not  only  on  their  sufficiency  but  their 
legal  efiect,  and  that  without  displaying  them,  or  displaying 
only  such  of  them  as,  in  his  opinion,  create  liens  or  incum- 
brances upon  the  title. 

§  23.  Continued — Certificates  of  Title.  A  familiar  in- 
stance of  the  sul)ject  under  discussion  is  furnished  by  a  late 
j\[issouri  case,'  wherein  the  examiner  comj)iled  an  abstract  in 
which  he  certified  that,  "  as  per  the  county  records  and  the 
•county  index  to  said  records,"  the  title  to  the  real  estate  in 
question  was  "  good  "  on  the  day  of  the  date  of  such  abstract 
in  one  Daniel  Cobb,  "and  that  there  M'as  no  incumbrance 
thereon,  nor  any  lien  thereon  excepting  for  certain  taxes  there- 
in specified."  As  a  matter  of  fact  a  trust  deed  was  then  of 
record  purporting  to  convey  the  subject  of  the  examination, 
but  executed  by  one  who  at  the  time  had  no  record  title,  al- 
though he  afterward  acquired  same,  and  this  sul)sequently 
acquired  title  was  that  which  the  examiner  had  certified  as 
"good  "  in  Daniel  Cobb,  the  second  grantee.  The  examiner 
in  this  case  admitted  that  he  was  -wholly  ignorant  of  the  ex- 
istence of  the  prior  deed,  but  attempted  to  justify  upon  the 
ground  that  a  deed  recorded  before  the  grantor  has  any  record 
title  may  be  safel}'^  disregarded  in  examinations  of  title,  under 
the  system  of  registration  and  notice  adopted  in  the  United 
States,  and  upon  this  point  the  case  turned  in   the  appellate 

direction  and  often  at  whose  direc-  registralion. 

tion.     This  is  a  direct  and  positive  '  Dodd  v.  Williams.  3  Mo.    A  pp. 

notice  that  the  examination   is  im-  278.     Consult    in   this    connection, 

perfect  on  certain  recocrnized   thoo-  Bank  v.  Ward,  100  U.  S.  195. 
ries  of  the  law  of  conveyancing  and 


558  ABSTRACTS    OF    TITLE. 

court.  Upon  a  question  of  this  character  the  examiner  can 
afford  to  take  no  chances.  The  law  is  so  difhcult;  the  ex- 
ce])tions  to  its  rules  so  numerous;  the  cases  so  many  and  so 
sli<^htij  distinguished,  so  often  apparently  conflicting,  thai 
the  risk  is  too  great,  unless  he  is  also  willing  to  assume  the 
liability  that  may  attach  to  it.  What  constitutes  a  lien  or 
incumhrance  upon  real  estate  may  in  some  instances  be  a 
difficult  question  to  deoide;  "  but  an  examiner  of  titles,"  says 
Bakewcll,  J.,  "  is  bound  to  know  the  state  of  the  law  on  the 
subject,  and,  where  there  may  be  a  reasonable  doubt  as  to 
whether  such  or  such  a  recorded  instrument  is  a  lien,  if  he 
chooses  to  resolve  the  doubt  he  does  so  at  his  own  peril.  *  * 
*  If  he  does  not  choose  to  assnme  this  liability,  he  may  eas- 
ily avoid  it  by  noting  in  his  certificate  every  question  which 
arises  upon  the  title  as  to  which  there  can  be  the  slightest 
doubt  in  the  legal  mind,  or  by  giving  a  list  of  deeds  and  in- 
cumbrances, and  abstaining  from  expressing  any  opinion  as 
to  their  legal  effect." 

§  24.  Opinions  based  upon  the  Abstract.  As  a  rule  few 
lawyers  desire  to  have  anything  to  do  with  the  compilation  of 
the  abstract,  further  than  such  incidentals  as  necessarily  re- 
sult from  the  inquiries,  requisitions  and  objections  made  upon 
the  title.  The  assumption  of  the  dual  character  can  rarely  be 
successfully  accomplished,  for  an  attorney  competent  to  pass 
upon  the  grave  questions  so  often  presented  can  hardly  spare 
from  his  practice,  time  which  must  be  consumed  in  the  prep- 
aration and  proper  keeping  of  indices,  nor,  even  when  public 
indices  are  available,  the  time  necessary  for  a  proper  search; 
while  an  examiner  who  makes  a  business  of  furnishing  ab- 
stracts, does  not,  and  from  the  very  circumstances  of  his  busi- 
ness can  not,  devote  the  time  necessary  to  keep  up  a  theoretical 
knowledge  of  the  law  applicable  to  examinationsof  title,  while 
he  is  entirely  deficient  in  that  fine  legal  acumen  that  comes 
only  from  direct  and  yjersonal  experience  in  the  every-day 
walks  of  a  lawyer's  liffe.  The  examiner,  by  constant  practice, 
becomes  very  expert  in  compilations,  far  more  so  than  a  law- 
yer making  occasional  searches  can  ever  hope  to  be,  but  by 
constantly  directing  his  attention  only  to  requisites  and  de- 


OPINIONS   OF   TITLE.  659 

fects  of  form  in  instruments  and  proceedings  which  pass  un- 
der his  hands,  and  though  becoming,  so  far  as  relates  to  such 
matters,  an  authority,  he  loses  sight  of  the  legal  effect  of  such 
instruments  and  proceedings,  and  fur  this  reason,  if  none  oth- 
er, should  neverattempt  an  opinion.  The  opinion  of  counsel  is 
based,  in  the  first  instance,  upon  the  presumption,  necessarily 
entertained,  that  the  examiner  has  faithfully  performed  his 
work  and  that  the  abstract  is  a  true  reflex  of  the  records,  and  of 
every  matter  and  thing  shown  thereby  that  apparently  affects 
or  implicates  the  title  under  consideration.  It  may  be  con- 
fined to  a  bald  statement  of  the  title  shown  by  such  abstract, 
with  no  comments  or  suggestions,  or  it  may  indicate  the 
weakness  of  the  title  with  recommendations  for  streni^theninor 
same.  But  inasmuch  as  the  client  frequently  seeks  profes- 
sional aid,  quite  as  much  for  advice  and  assistance  in  perfecting 
a  title,  this  matter  will  depend  largely  upon  the  client's 
wishes.  In  the  event  just  indicated,  the  perusal  and  analysis 
will  suggest  possibly  many  inquiries,  which,  unless  remedied 
before  the  opinion  is  rendered,  must  find  adequate  expression 
therein  and  where,  upon  a  continuation,  former  opinions 
have  suggested  acts  to  be  done,  the  continuation  should  show 
compliance  with  such  suggestions.  "Where  the  title  is  de- 
fective from  any  cause  capable  of  easy  remedy,  as  where 
missing  deeds  are  found  upon  inquiry,  or  satisfactory  infor- 
mation is  furnished  in  answer  to  requisitions,  the  several  mat- 
ters should  be  placed  on  record  and  a  supplemental  ab- 
stract made  covering  such  special  matter.  Upon  the  original 
and  supplemental  abstract  the  opinion  may  be  remk-red,  and 
if  all  doubts  have  been  resolved  thereby  such  opinion  would 
consistof  little  else  than  a  statement  that  the  fee  of  the  premises 
rests  in  whoever  is  shown  to  be  the  owner,  unincumbered  and 
unembarrassed.  More  frequentlv,  however,  counsel  prefer  to 
recite  the  objectionable  features,  and  qualify  the  opinion 
by  reference  to  such  recitals,  leaving  the  client  to  accept  or 
reject  the  title,  as  his  inclination  may  suggest,  or  take  stej^s  to 
perfect  it  in  accordance  with  the  opinion.  When  such  is  the 
case  an  opinion  may  be  rendered  som(;what  aftur  the  follow- 
ing manner: 


5 GO  AESTEACTS    OF    TITLE. 

OPINION  OF  TITLE 

to 
Lot  10,  in  Block  JfO,  of  Simpson'' s  suhdivision  of  the  N.  E. 
qr.  of  Sec.  10,  T.  12  N.,  R.  13,  E.  as  disclosed  hy  the  an- 
nexed abstract,  tnade  hy  Haddock,  Vallette  and  RickcordSs 
and  dated  Aug.  15,  1883. 


I  have  examined  the  annexed  abstract,  consisting  of  twenty - 
three  numbers,  relative  to  the  title  thereby  disclosed  to  the 
■premises  above,  and  in  said  abstract  described,  and  find: 

A  defective  deed,  shown  as  No.  10  from  Thomas  Jones  and 
Olivia,  his  wife,  to  Cyrus  B.  Maxwell,  in  that  said  Olivia 
failed  to  release  her  dov)er  in  the  manner  then,  {18Jj2)  jpre- 
scribed  by  law. 

A  defective  deed,  shown  as  No.  18,  from  Benson  Hardy  to 
William  J.  Hanson,  in  that  the  wife  of  said  Hardy,  she 
having  been  shown  to  be  then  and  still  living,  failed  to  re- 
lease her  dower  by  joining  in  the  execution  of  said  deed. 

A  mortgage  for  %500.00,  shown  as  No.  19,  from  William 
J.  Hanson  to  Thomas  Jackson,  the  laio  day  of  which  exjpired 
Jan.  31,  1883. 

I  further  find: 

No  releases  or  waivers  of  the  right  of  dower  jpnrjporting  to 
be  made  by  Olivia  Jones  or  the  loife  of  Benson  Hardy, 
shown  by  said  abstract  to  be  of  record  in  this  county. 

No  release  or  discharge  of  the  mortgage  above  noted. 

Aiid  I  am  of  opinion: 

That  conveyance  No.  10  creates  no  lien.,  cloud,  or  charge 
upon  the  title,  and  that  the  defect  noted  is  cured  by  the  lapse 
of  time  and  the  possession  of  the  therein  mentioned  grantors'* 
assigns. 

That  conveyance  No.  18  discloses  a  contingent  lien  or 
charge  ujpon  the  title  to  the  extent  of  the  inchoate  right  of 
dower  of  the  wife  of  Benson  Hardy. 

That  the  mortgage.  No.  10,  is  a  valid  subsisting  incum- 
brance. 

I  am  fu rtlier  of  o]) in io n:  . 

That  the  title  to  the  fee  of  said  premises  is  noio  vested  in 


OPINIONS   OF    TITLE.  56j'. 

William  Springer^  free  from  all  liens,  charges  and  incum- 
hrances  appearing  of  record^  and  shoion  by  said  alstract, 
except  those  hereinabove  expressly  enumerated  and  de- 
scribed. 

To  perfect  the  title  of  said  Springer,  I  would  recora- 
mend: 

A  deed  of  release  from  the  wife  of  Benson  TTardy. 
A  deed  of  release  from  Thomas  Jackson,  said  mortgagee, 
or  his  assigns. 

{Signed.) 

GEO.  W.  WARVELLE, 

Examining  Counsel. 

The  foregoing  crude  outline  will  serve  to  suggest  a  form 
for  the  expression  of  opinions,  and  the  general  manner  in 
which  such  opinions  should  exhibit  the  defects  of  the  title. 
It  is  necessarily  brief,  and,  for  the  better  purposes  of  illustra- 
tion, very  simple,  yet  will  indicate  the  method  of  treatment 
of  more  difficult  and  complicated  matters. 

§  25.  Hypothetical  Expressions.  Counsel  very  frequently 
shirk  a  direct  opinion  by  hj^pothetical  statements  as  to  what 
the  title  might  be  if  certain  matters  could  be  shown;  as,  that 
the  title  "  would  be  good  in  John  Smith,  provided,"  etc. 
This  can  not  be  regarded  as  a  desirable  manner  of  expression. 
It  sounds  oracular  but  means  nothing.  The  issue  should  be 
met  foirly;  if  the  title  of  an  individual  as  shown  is  not  valid, 
pronounce  it  invalid,  and  then  make  whatever  recommen- 
dations may  be  thought  best  to  cure  defects,  or  validate  same. 
If  subject  to  doubt,  indicate  the  cause  of  the  doubt,  and  the 
method  of  removal.'  The  use  of  qualifying  adjectives  in 
connection  with  the  title  is  very  objectionable.  Notwith- 
standing the  fact  that  a  court  of  equity  sometimes  hesitates  to 
pronounce  a  title  invalid  that  it  yet  will  not  force  upon  an  un- 

'  It  must  be  understood  that  this  tions    are  ponoral  and   iiitondod  to 

course   is   recommendod  only   when  disclose   the  present   condition   and 

some  specific  title  is  the  object  of  ex-  true  ownership  of  the  fee.     A  too 

amination;  as,  a  tax  title,  etc.     In  close   adherence  to    En,L,dish   proce 

such  case  the  title  asserted  may  be  dents  has  led  to  the  employment  of 

doubtful;   but    ordinarily    examina-  the  terms  mentioned  in  the  text. 
36 


562  ABSTRACTS    OF   TITLE. 

willinir  pnrcliaser,  and  lienco  pronounces  it  doubtful,  tliere  are 
no  degrees  of  excellence  in  titles.*  At  law,  and  it  is  tlie  legal 
title  only  which  is  under  examination,  all  titles  are  valid  or 
invalid.  It  is  not  in  good  form,  therefore,  to  say  that  a 
"good"  title  is  vested  in  any  person,  for  a  "bad"  title  is  no 
title.  It  is  still  worse  to  say,  as  is  often  done,  that  A  B  pos- 
sesses "  substantially  a  good  title,"  or,  that  the  title  is  "  sub- 
feiantially  good  "  in  a  person  named.  As  colloquial  phrases 
4,nd  forms  of  expression  they  ^nay,  and  do  have,  a  definite 
jneaning,  but  in  formally  written  opinions  they  should  have 
no  place.  The  title  should  be  placed  in  whomsoever  it  is 
nnide  to  appear,  and  it  must  rest  somewhere.  If  it  is  ob- 
scured, or  insecure  in  the  person  named,  state  the  facts  and 
announce  the  legal  effect.  There  is  no  such  thing  in  law  or 
in  fact  as  a  doubtful  title  pe?'  se,  although  the  claim  of  an  in- 
dividual to  title  may  be  the  subject  of  doubt.  The  fee  is  al- 
ways in  existence;  it  is  never  in  abeyance;  it  is  never  "good," 
"  bad  "  or  "  doubtful."  The  evidences  of  the  rights  of  owner- 
ship may  be  all  or  either,  but  the  confusion  of  terms  sometimes 
betrays  counsel  into  expressions  that  he  does  not  really 
mean. 

g  26.  Oral  Opinions.  The  questions  as  to  the  propriety  or 
cxpedieucj'  of  an  oral  opinion  in  matters  of  title  are  solely  for 
individual  solution.  It  would  seem  that  in  so  weighty  a 
matter  as  the  acceptance  or  rejection  of  a  title,  if  an  opinion 
is  worth  rendering,  it  is  worth  reducing  to  writing.  It  is,  or 
should  be,  the  result  of  careful  and  critical  examination,  and, 
presumably,  has  cost  counsel  many  hours  of  laborious  investi- 
gation.    Whether  the  questions  presented  be  trivial  or  mo- 

'  It  is  the  specific  claim  of  title  to  "  good."     A  claim  to  this  ownership 

which  a  court  alludes  when  passing  and  estate  may  be  made  by  several, 

upon  its  validity.     In  common  par-  but  unless  there  is  a  common  tenancy 

lance  we  speak  of  good  titles,  bad  only  one  can  possess  it.     The  claim 

titles,   and  doubtful  titles,  "but    we  of  the  others  we  often  denominate 

mean  the  claim    and    the  evidence  f//Ze.s;  a  palpable  misnomer;  and  in 

upon  which  it  is  founded,    and  not  speaking    of  such    claims    we    fre- 

the    title  itself.      An   allodial    title  quently  say  his  title  is  bad,    etc., 

in  fee  is  the  highest  type  of  owner-  meaning,  however,  the  insuiBciency 

ship  and  estate,  and  this  is   always  of  the  evidences  of  his  claim. 


OPINIONS   OF   TITLE.  563 

mentons,  since  the  decision  of  the  issue  is  of  vital  importance 
to  the  intendinf^  purcliaser,  is  it  well  to  leave  it  to  his  recollec- 
tion? Whatever  action  connsel  may  have  taken,  unless  he 
preserves  all  his  memoranda,  tlie  pressure  of  other  matters 
•soon  drives  from  liis  mind,  and  when,  a  short  time  after- 
ward, the  purchaser,  wlio  now  entertains  but  an  indistinct 
recollection  of  what  was  told  him,  applies  to  counsel  for  in- 
formation on  some  particular  point  connected  therewith,  he 
can  remember  nothing  whatever  about  it.  The  opinion  in 
such  a  case,  except  as  it  may  have  influenced  the  sale  at  the 
time  it  was  rendered,  was  practically  useless  and  the  time 
consumed  in  its  preparation,  in  one  sense,  wasted  and  lost. 
Again,  the  client  may  not  have  understood  it  as  counsel  pro- 
nounced it,  and  a  dispute  arises  between  counsel  and  client 
as  to  the  advice  actuall}'-  given;  and  thus  counsel  is  drawn 
into  a  controversy,  the  most  detestable  in  which  it  is  possible 
for  a  lawyer  to  be  engaged.  All  this  can  be  avoided  by  re- 
ducing the  opinion  to  writing.  There  it  remains  unchanged, 
with  no  chance  for  disputes  or  misconstructions;  always  avail- 
able when  needed;  and  a  strong  pillar  in  support  of  the  title 
wlien  it  is  again  placed  upon  the  market. 

§  27.  Liability  for  Erroneous  Opinions.  An  attorney  em- 
ployed by  a  purchaser  of  real  property  to  investigate  the  title 
of  the  grantor  prior  to  the  purchase,  impliedly  contracts  to 
exercise  reasonable  care  and  skill  in  the  performance  of  the 
undertaking,  and  if  lie  is  negligent  or  fail  to  exercise  such  rea- 
sonable care  and  skill  in  the  discharge  of  the  stipulated  serv- 
ice, he  is  responsible  to  his  employer  for  the  loss  occasioned 
by  such  neglect  or  want  of  care  and  skill;  like  conditions  and 
results  also  follow  an  employment  to  investigate  and  ascer- 
tain whether  property  offered  is  a  safe  or  suflicient  se- 
curity for  a  loan  of  money.*  The  obligation  imposed  on  the 
attorney  does  not  require  of  him  the  possession  of  perfect 
legal  knowledge  or  the  highest  degree  of  skill  in  relation  to 
business  of  that  character,  nor  that  he  will  conduct  it  with  the 
greatest  degree  of  diligence,  care  and  prudence,  but  simply 
that  he  shall  possess  the  ordinary  legal    knowledge  and  skill 

» Addison  on  Cont.  (6th  ed.)  4^0;  Dodd  r.  Williams,  3  Mo.  App.  27«. 


564  ABSTRACTS    OF   TITLE. 

common  to  members  of  the  profession;  and  that,  in  the 
discharge  of  the  duties  he  has  assumed,  he  will  be  ordinarily 
and  reasonably  diligent,  careful  and  prudent.*  He  is  not  lia- 
ble for  mere  errors  of  judgment,  nor  for  mistakes  of  law  in 
matters  where  the  law  is  not  well  settled;^  these  are  general 
principles  of  universal  recognition.  In  a  late  case,  decided 
by  a  federal  court  in  Oregon,  it  was  held,  however,  that  where 
an  attorney  who  is  employed  to  examine  the  title  of  property 
offered  as  security  for  a  loan,  certifies  that  the  security  is  a 
good  one,  he  thereby  warrants  that  the  title  shall  not  only  be 
found  good  at  the  end  of  a  contested  litigation,  but  that  it  is 
free  from  any  palpable  grave  doubts  or  serious  questions  as  to 
its  validity.'*  The  learned  judge  who  delivered  the  foregoing 
opinion  does  not,  however,  fortify  it  with  any  citations  of  au- 
thority, and  diligent  search  fails  to  reveal  any,  from  which  it 
is  inferred  that  the  statement  above  made  does  not  present  the 
true  spirit  of  the  law  in  relation  to  the  facts  stated.  A  more 
strict  rule  is  observed  in  case  of  examiners  or  where  the  at- 
torney professes  to  furnish  information  as  well  as  pass  opinions 
in  connection  therewith,  and  where  one  who  proposes  to  make 
a  specialty  of  examining  titles  in  the  course  of  his  business, 
gives  a  certificate  that  he  has  made  examination  and  finds  no 
incumbrance  against  certain  property,  he  will  be  liable  if  the 
incumbrance  is  of  record  in  such  a  way  as  to  give  constructive 
notice  to  every  one  interested  and  actual  notice  to  every  one 
looking  for  it  in  the  proper  way.* 

8  28.     Conclusion.      In   brino^ino;  this  book  to  a  close  the 

1  Wharton  on  Neg.  749;  Shear.  &  should  be,  but  no  authority  can  be 
Red.  on  Neg.  211;  Wells  on  Attys.  found,  so  far  as  the  investigation  of 
285;  Gamberi  v.  Hart,  44  Cal.  542;  the  writer  has  extended,  to  sustain 
Skillen    v.  Wallace     36    Tnd.    319.  the  statement  that  the  attorney  t^ar- 

2  Dodd  V.  Williams,  8  Mo.  App.  rants  the  title,  nor  to  charge  him 
278  with  any  liability  upon  such  a  wai-- 

3  Page    V.  Trutch,   8    Cent.  Law  ranty. 

Jour.  559.     There  can  be  no   doubt  *  Dodd  tJ.  Williams,  8    Mo.  App. 

that,  in  a  case  similar  to  the  above,  278;  Chase  v.   Heaney,  70  111.    268; 

it  is  understood  by  the  client  and  in-  Cark  v.  Marshall,  34  Mo.  429;  Baak 

tended  by  the  attorney,  that  the  title  v.  Ward,  100  U.  S.  195. 
is  all  the  learned   judge  claims  it 


OPINIONS   OF    TITLE.  565 

writer  sees  the  imperfections  of  liis  work,  and  feels  that  in 
abler  hands  its  treatment  might  have  been  far  different.  Yet 
he  ventures  to  express  a  hope  that,  to  many  it  will  furnish 
much  desired  information  and  be  a  practical  help  and  guide; 
that  it  will  assist  in  building  up  a  system  of  title  abstracts, 
liow  but  partially  understood  in  many  localities,  and  be  in- 
strumental in  securing  a  uniformity  in  the  metliods  of  prepar- 
ing and  compiling  such  abstracts.  The  formulas  which  are 
herein  presented  are  suggestive  merely;  examiners  and  attor- 
neys will  be  able  to  improve  upon  them;  yet  it  is  believed 
they  will  remain  the  substantial  groundwork  of  future  exten- 
sions and  additions,  as  representing  the  combined  experience, 
extending  over  many  years,  of  some  of  the  ablest  examiners 
of  the  centur3\  The  methodical  preparation  of  abstracts  in 
the  United  States  is  yet  in  the  experimental  stage;  English 
precedents  furnish  no  rule  or  guide,  being  founded  upon  a 
system  that  never  had  any  practical  application  in  this  coun- 
try, and,  by  reason  of  the  peculiar  genius  of  our  institutions, 
never  can  have.  By  slow  degrees  we  are  formulating  a  s^'stem 
essentially  our  own,  and  if  this  work,  by  precept  or  suggestion, 
shall  be  instrumental  in  assisting  in  this  formation,  in  dis- 
couraging false  methods,  and  in  affording  a  light  on  obscure 
points  that  shall  aid  the  young  and  inexjierienced,  the  highest 
desire  of  the  writer,  in  relation  thereto,  will  be  satisfied. 

THE    END. 


APPENDIX. 


NEW    ENGLAND   ABSTRACTS. 

A  peculiar  system  of  abstract  making  seems  to  prevail  in 
the  New  Eiif^land  States,  or  certain  of  them,*  This  system  is 
apparentl}''  an  offshoot  from  that  now,  or  formerly,  practiced 
by  the  English  conveyancers,  and  resembles,  in  many  respects, 
the  English  abstracts  alluded  to  in  the  body  of  this  work, 
particularly  in  "marginal"  divisions.  It  is  not  the  same, 
liowever,  as  that  expounded  and  illustrated  by  Lee,  Moore, 
and  other  late  English  writers,  but  is  probably  the  direct 
result  of  the  same,  varied,  possibly,  by  "  natural  selection." 
There,  as  in  England,  though  one  plan  is  to  show  everything 
relating  to  the  title  of  tlie  estate  under  consideration,  another, 
and  the  one  apparently  in  popular  use,  is  to  commence  with 
some  early  deed  as  the  root  of  title,  and  insert  after  it  a  list 
of  the  conveyances  made  by  the  grantee  to  the  point  or  time 
when  the  estate  passes  out  of  him,  and  so  continue  with  suc- 
cessive grantees  until  the  present  owner  is  reached. 

The  instruments  are  very  fairly  and  fully  abstracted,  but 
the  examiner  indulges  in  a  wealth  of  abbreviation  unknown 
to  any  other  part  of  the  country.  It  is  arranged  very  system- 
atically, and  probably,  to  those  who  are  in  the  habit  of  exam- 
ining such  abstracts,  convenientl3^  The  name  of  the  grantor, 
and  the  date  from  which  his  title  is  traced,  is  written  at  the 
top  of  the  page  and  over  the  colunms  or  margins,  which  are 
then  filled  up  as  follows:  The  first  contains  the  dates,  which 
include  the  years  of  the  indexes,  and  dates  of  execution, 
acknowledgment  and  registration;  the  name  of  the  officer 
taking  the  acknowledgment,  and  the  initials  of  each  grantor, 
where  there  are  more  than  one,  to  designate  his  se|  arate  con- 

*  The  data  for  this  article  is  taken  mainly  from  thf  appon'lix  l>y  .M.  H. 
Durgin,  to  Curtis'  well  known  "American   Conveyancer."     (iJosLon,  1871.) 

(567) 


568 


APPENDIX. 


veyances.  Followinpj  this  comes  the  book  and  pai^c  of  the 
record  in  two  narrow  columns.  In  the  next  column  are  in- 
serted the  names  of  the  grantees;  consideration;  notes  of 
dower  and  homestead;  words  of  grant;  covenants;  and  men- 
tion of  formal  defects.  In  the  hist,  or  right  hand  column,  are 
placed  the  descriptions;  notes  of  incumbrances;  conditions, 
recitals,  etc.  As  a  farther  explanation  an  example  is  ap- 
pended: 

Hiram  "W.  Smith,  grantok  from  1822. 


1822  to  1835. 

None. 

1835-7. 

355 

210 

Wm.  Jackson. 

Mtg.  $1,000,  2  yrs.     (Descrip- 
tion.)    Nov.  10,  1837.     Can- 

celed on  margin    by  Wm. 

Jackson. 

1838-9. 

None. 

1839. 

493 

121 

J.  L.  Woodman. 

A  certain  parcel  of  Id.  in  Stan- 

Nov. 20. 

$5,000. 

ford,  on  sly.  side  of  Rush  St., 

"     21. 

contg.  15  acs.  m.  or  1. 

"     21. 

Emma,  rel.  d. 

BejT.  at  S.  W.  cor.  on  Rush  st. 

Jno.  Smith 

g.  gr  .  b.  s.  &  conv. 

at  Id.  of  0.  S.  Newell,  the. 

J.  F. 

Wty.  Tree. 

rung.  N.   E.  by  sd.   st.    as 
fence  now  stands  50  rds.  9 
Iks.  to  a  stone  standing  by 
Id.  of  J.   Smith,   the.   rung. 
N.  90°  E.  15  rds.,  e  c. 
Eeservg.  privilege  to  pass,  etc. 

The  next  conveyance  by  J.  L.  Woodman  would  place  his 
name  at  the  head  of  the  page  as  grantor,  and  the  procedure 
would  be  the  same  until  he  finally  parted  with  title.  All  the 
conveyances  made  by  grantor  during  the  period  in  which  he 
held  title  are  noted,  whether  they  include  the  premises  in 
question  or  not,  but  if  of  other  land,  reference  only  is  made 
to  them;  as  "Id.  in  Charlestowu,"  nor  is  any  mention  made 
of  defects,  dates,  etc. 

Analysis  of  Abstract. 

Mr.  Lee,  in  the  appendix  to  his  valuable  work  on  abstracts, 
gives  the  following  form  of  an  analysis  of  an  abstract,  which 
may  be  of  service  to  American  practitioners  by  way  of  sug- 
gestion. 


APPENDIX. 


569 


AN  A. LYSIS  OF  ABSTRACT. 


Estate  in  Foxburjs  (  }  ^^^^^^  messuage  and  cotta-e. 

County  ot  Devon.  |  ^^^  f^^^^^  ^j.  ^.^,J.^^^  ^ight  of  common. 


Observations. 


Date,  Parties,  Parcels. 


Uses,  Trusts,  Limitations,  etc. 


Terms,  Incum- 
brumcs. 


1773.     March  1. 
John  Jones  conveys 

Manor ^ 

House I  To  Abraham    Ashford 

300  acres [      fee. 

Common  right. . .  I 


Use  of  Ann  Downes  for  life 

—  as  Henry  Smith  shall 

appoint. 

—  of  Henry  Smitli  in  fee. 


1790.     May  8. 
Henry    Smith     a 

points  same  prem 

ises  to 


11-  > 


Certificates  of 
the  baptisms 
or  births  of 
the  cliiklren 
of  Mr.  and 
Mrs.  Smith, 
should  be 
pr  0  d  u  c  e  d. 
and  a  decla^ 
ration  under 
the  Aboli- 
tion of  Oath 
Act  made  by 
a  person  re- 
lated to  or 
acquai  n  t  e  d 
with  the  fam- 
ily,    stating 

that  there  1806.  Jan.  6 
are  but  four  JqI^^  Young,  Ann 
children  of  gu^itii,  ;„ifi  ^uj. 
the  mar-  children,  release 
riage,  should  ...^e  p,emiscs 
be  supplied; 
and  if  Mrs. 
Smith  be 
now  dead,  a 
certificate  of 
her  bu  rial 
should  be 
furnished, 


Use  of  H.  Tliompson  1,000 
years. 
—  of  John  Young  in  fee. 

Trust  for  A.  S .  for  life. 
—  for  H.  Smith's  chil- 
dren in  fee. 


■to  Richard  Jenkins  in  fee. 


Subject  to  1,000  j-ears,  and 
right  of  Mrs.  Smith  to 
live  in  cottage  for  life 


l.OOOj-earsin 
H.  Thomp- 
son to  raise 
2,000  I.  for 
portions. 


570 


APPENDIX. 


Observations. 


Date,  ("artics,  Parcels.     Uses,  Truss.  Liinitiitimis,  etc. 


I  erms,  Iiieum- 
briiiues. 


1815.     June  18. 

Proved  20th  July,  1816 
Richard  Jenkins 

wills — 
Manor,  house,  cot- 
tnge,  100  acres  and 
common  right, 


to  J.  Morris  and  E.  Simp- 
son. 


Note. — 200  acres 
sold  by  Mr.  Jenkins 
during:  his  life. 


Trust  for  testator's  wife  for 
life,  remainder." 

for  testator's  children 

in  fee. 


2,000^.  paid 
off.  Term  of 
1,000  years. 
Assigned  to 
Oliver  Pear- 
son, in  trust 
to  attend  for 
parties  enti- 
tled under 
Jenkins' 
will. 


IXDEX. 


[the  figures  refer  to  the  pages.] 


ABANDONMENT, 

of  homestead,  18. 

title  by,  49. 

of  title,  how  accomplished,  50. 
ABBREVIATION, 

when  allowable,  87. 
ABORIGINAL  TITLE, 

nature  of,  49. 

does  not  extend  to  the  soil,  49. 
ABSENCE, 

when  presumptive  of  death,  507. 
ABSTRACT, 

definition  of,  2. 

essentials  of,  3. 

English  method  of  compilation,  3. 

American  method  of  compilation,  4. 

distinguished  from  ex«minations,  5. 

liability  for  erroneous  abstracts,  7. 

who  must  furnish,  8. 

when  the  propei-ty  of  purchaser,  8. 

when  the  property  of  mortgagee,  8. 

compiled  only  from  records,  56. 

aid  derived  from  indices,  67. 

patent  systems,  67. 

compilation  of,  79. 

formal  parts  of,  82. 

caption  to,  83. 

arrangement  of,  84. 

letter  press  copies  of,  87. 

certificates  to,  88. 

notes  to,  86. 
Op  Deeds, 

essential  features,  151. 

parties,  152,  153,  178 

dates,  155,  156,  ISO. 

(571) 


572  INDEX. 

ABSTRACT.     Contimied. 
consideration,  157. 

operative  words.  158,  160,  181. 

description,  161,  162,  182. 

recitals,  163-8. 

execution,  168,  170. 

of  warranty,  192. 

of  quitclaim,  195. 

of  non-claim,  198. 

of  sun-en  der,  203 

of  future  estates,  204. 

of  special  interest,  206. 

of  re-records,  215. 

of  special  parties,  217. 

of  corporations,  228. 

of  trust,  243. 

of  ofBcials,  248. 

of  sheriffs,  253. 

of  trustees,  257-259. 

of  personal  representatives,  264. 

of  guardians,  269. 

of  assignees,  282. 

of  assignment,  273. 
Of  Land  Contracts, 

synopsis  of,  291. 

formal  parts,  290. 

bond  for  deeds,  295. 
Of  Leases, 

formal  parts,  298. 

synopsis  of,  299. 
Of  Mortgages, 

synopsis  of,  326. 

for  purchase  money,  331. 

of  homestead,  331. 

trust  deeds,  335. 

of  release  of,  343. 
Of  Wills, 

formal  parts,  373-377. 

of  proof  of,  378. 

of  probate  of,  382. 
Of  Liens, 

generally,  386. 

mechanics,  391. 
Of  Legal  Proceedings, 

lis  pendens,  399. 

attachment,  401. 

judgments,  409. 


INDEX.  573 


ABSTRACT.     Continued. 

deci-ees,  415. 

jmlicial  sales,  420,  443. 

chancery  proceedings,  444. 
Of  Tax  Proceedings, 

sales,  483. 

certificates,  487. 

deeds,  491. 
Of  Descents, 

proof  of  death,  509. 

of  birth,  510. 

synopsis  of  probate,  513. 

pedigree,  512. 
Of  Adverse  Titles, 

method  of  showing  adverse  conveyances,  517. 
Op  Miscellaneous  Matters, 

municipal  ordinance,  305. 

official  certificates,  308. 

party  wall  agreements,  810. 

letters,  312. 

affidavits,  313. 

of  unrecorded  evidence,  315. 
ACCEPTANCE,   * 

of  patents,  127. 

of  deeds,  173. 

of  dedications,  47. 
ACCRETION, 

defined,  43. 

title  by,  43-45. 

follows  contiguous  land,  45. 

distinguished  from  avulsion,  45. 

how  measured  and  divided,  44. 
ACKNOWLEDGMENT, 

nature  and  effect  of,  171. 

office  of,  171,  185,  187. 

must  conform  to  statute,  172,  185. 

not  essential  to  pass  title,  172. 

except  in  official  deeds,  251. 

certificate  must  state  facts,  172. 

defects,  how  shown,  173,  185. 

when  may  be  impeached,  173. 

presumptions  are  in  favor  of,  173,  185. 

how  authenticated,  187. 

by  married  women,  222. 

by  corporations,  23"). 

by  attorneys  in  fact,  239. 


674  INDEX. 

ACTIONS, 

respecting  title,  444. 

at  law  and  in  equity,  445. 

that  call  for  notice,  447, 

jurisdiction  the  great  essential  to,  448. 

notice  afforded  by,  449. 

how  shown,  456. 

chancery  actions,  458,  474. 
ACQUISITION, 

of  tide,  9. 
AD  LITEM, 

guardianship  by,  441. 
ADMINISTRATOR, 

office  of,  264. 

power  over  land,  265. 

sales  by,  265. 

deeds  of,  265. 

with  will  annexed,  268. 

de  bonis  non,  268. 
ADMINISTRATION, 

effect  on  titles,  511. 

abstract  of,  513. 

settlement  without,  514. 
ADOPTION, 

defined,  31. 

unknown  to  the  common  law,  31. 

regulated  by  positive  statute,  31. 

rights  conferred  by,  31,  32. 

as  affecting  descents,  31,  32,  502. 

how  shown  in  abstract,  32. 
ADVERSE  CONVEYANCES, 

what  are,  515. 

how  shown,  516. 

notes  of,  516,  517. 
ADVERSE  POSSESSION, 

defined,  518,  521. 

character  of,  518 . 

statutory  distinctions,  518. 

clandestine  possession,  519. 

by  color  of  title,  521. 

from  user,  522. 

without  claim,  523. 

tacking,  523. 

as  notice,  524. 

runs  against  whom,  525. 

does  not  run  against  remainder  men,  525. 

nor  reversioners,  525. 


INDEX. 

ADVERSE  POSSESSIOX.    Contimied. 

nor  tenants  in  common,  526. 

nor  persons  under  disability,  526. 

nor  the  State,  526. 

effect  of  on  title,  527. 

pi-oof  to  support,  523. 
ADVERSE  TITLES, 

generally  considered.  515. 

how  shown,  516,  517. 

upon  possession,  521. 

tacking,  523. 

who  may  acquire,  524. 

who  protected  against,  525,  526. 

when  equal  to  full  legal  title,  527. 

proofs  to  support,  528. 
AFFIDAVITS, 

generally  considered,  313. 

how  used,  313,  426. 

form  and  requisites  of,  314. 

abstract  of,  314. 

of  publication,  426. 

of  identity,  536. 

of  extrinsic  facts,  546. 
AFFINITY, 

defined,  31, 

nature  of  at  common  law,  31. 

and  under  the  statute,  31. 
AFTER-ACQUIRED  ESTATES, 

when  bound  by  lien  of  judgments,  408 

when  included  in  mortgages,  333. 
AGENTS, 

may  sign  memorandum  of  sale,  239. 

but  in  name  of  principal,  289. 

may  be  appomted  orally,  289. 

may  not  purchase  at  their  own  sale,  270. 
AGREEMENT, 

for  conveyance  by  deed,  287,  294. 

for  conveyance  by  will,  295. 

for  leases,  297. 

for  party  wall,  310. 
AGREEMENT  FOR  CONVEYANCE, 

nature  and  requisites,  289. 

relation  of  parties  under,  288. 

effect  and  operation  of,  288. 

as  affected  by  recording  acts,  290. 

construction  of,  290. 

formal  parts  of,  291. 


576  INDEX. 

AGREEMENT  FOR  CONVEYANCE.     Continued. 

abstract  of,  291. 

assijjnment  of,  292. 

performance  of,  293. 

title  required  to  fulfill,  293. 

by  will,  295. 
AGRICULTURAL  LANDS, 

descriptions  of,  144. 

leases  of,  when  void,  301. 

plats  of,  144. 
ALIEN, 

disabilities  of,  349,  500. 

rights  in  matters  of  purchase,  349. 

and  descent,  500. 

can  not  pre-empt  land,  108. 
ALIENATION, 

by  what  laws  governed,  24. 
ALIMONY, 

allowance  of,  471. 

when  a  lien  on  land,  471. 
ALLEGIANCE, 

not  a  feudal  obligation,  13. 
ALLODIAL  TITLES, 

estates  under,  13. 

defined,  13. 
AMBIGUITY, 

general  effect  of,  182. 

in  deeds,  182. 

in  wills,  350,  362. 
ANALYSTS  OF  ABSTRACT, 

English  form  of,  569. 
ANALYSIS  OF  TITLE, 

necessity  of,  540. 

how  made,  540. 

of  what  consisting,  540. 

practical  example,  541,  544. 
ANALYTICAL  CHAINS, 

use  of,  543. 

how  made,  543. 

of  what  consisting,  543. 

practical  example,  544. 
ANCESTOR, 

defined,  495. 

debts  of,  how  affecting  heirs,  504. 
ANCIENT  DEEDS, 

general  principles  of  law  relating  to,  175. 


INDEX.  577 


ANSWERS, 

to  requisitions,  539. 

how  preserved,  539. 

of  what  consisting,  540. 
APPEARANCE, 

efiect  of  in  legal  proceedings,  453. 
ARRANGEMENT, 

of  abstract,  84. 

of  liens,  386. 

of  adverse  conveyances,  515. 

of  wills,  376. 
ASSIGNEE, 

of  bankrupt,  276. 

title  of,  276,  284. 

of  mortgage,  339. 

of  land  contract,  292. 

of  lease;  302. 
ASSIGNMENT, 

of  pre-emption  right,  93. 

of  homestead  right,  100. 

of  dower,  19. 

of  lease,  302. 

of  land  contract,  292. 

of  mortgage,  339. 

of  certificates  of  sale,  436. 

of  tax  certificates,  487. 
ASSIGNMENTS  fOR  CREDITORS, 

generally  considered,  273. 

voluntary  and  involuntaiy,  274. 

validity  of,  275. 

construction  and  effect  of,  277. 

conflict  of  laws  relating  to,  278. 

formal  requisites  of,  275. 

in  bankruptcy,  282. 

abstract  of,  282. 
ASSIGNMENT  OF  MORTGAGE, 

what  estate  passes,  339. 

how  made,  339. 

operation  and  effect  of,  340. 

effect  of  registration  of,  339. 

formal  requisites  of,  340. 
ATTACHMENT, 

nature  and  office  of,  400. 

formal  requisites,  400. 

proceedings  in,  401. 
ATTESTATION, 

of  deeds,  170. 
37 


578  INDEX. 

ATTESTATION.     Continued. 

of  wilh,  374. 
ATTORNEY, 

power  of,  240. 

in  lact,  289. 

opinion  by,  555. 

liability  of  for  erroneous  opinions,  563. 
AVCJLSION, 

deiined,  45. 

distinguished  from  accretion.  45. 

ownei'ship  of  derelict,  46. 

BANKRUPTCY, 

generally  considered,  279. 
jurisdiction  and  practice,  279. 
procedure  in,  279. 
nature  and  effect  of,  280. 
voluntary  and  involuntary,  279. 
proceedings,  how  shown,  280. 
assignment  in,  282. 
title  conferred  by,  284. 
deeds  of  assignee,  283- 
diseharge  in,  285. 
abstract  of,  286. 
BARGAIN  AND  SALE, 
deeds  of,  189. 
contracts  of,  287. 
BASE  FEE, 

what  is,  210. 
BEQUEST, 

general  signification,  348. 
validity  of,  349. 
words  which  constitute,  352. 
BIRTH, 

how  affecting  curtesy,  221. 
of  posthumous  child,  27. 
proof  of,  510. 
BLANK  CONVEYANCES, 

what  are,  304. 
BOND, 

for  title,  295. 
official,  lien  of,  389. 
BOND  FOR  DEED, 

nature  and  requisites,  295. 
abstract  of,  295. 
how  construed,  295. 


INDEX.  579 


BOUNDARIES, 

on  water  fronts,  44,  46,  143. 

rule  for  measurement,  44. 

the  western  rule,  45. 

meander  lines  as,  46,  143. 

when  the  shore,  47,  143. 

of  legal  divisions  of  the  public  domain,  137. 

of  townships,  189. 

of  sections,  140. 

of  fractional  lots,  141. 

what  controls  in  fixing,  69,  162. 
BURDEN  OF  PROOF, 

in  construing  deeds,  190. 

in  construing  wills,  350. 

in  support  of  tax  titles,  483. 

CA.PACITY, 

to  make  deeds,  152. 

to  make  wills,  349. 

to  purchase,  155,  228. 

to  inherit,  496,  500. 

of  corporations,  228. 
CAPTION, 

of  abstract,  83. 

of  opinions,  556,  560. 
CAVEAT  EMPTOR, 

applies  to  all  sales,  196,  268,  431. 
CERTIFICATES, 

official,  66,  308. 

effect  of,  308. 

how  shown,  309. 

abstracts  of,  309. 

of  sale,  433,  435. 

of  attachment,  401. 

of  levy,  401. 

of  tax  sale,  487. 

of  puljlication,  426. 

examiners,  89. 

of  title,  557. 

assignment  of,  436. 

of  proof  of  will,  378. 
CHAIN  OF  TITLE, 

preliminarj'  sketch  of,  81. 

analytical,  on  examinations,  543. 

practical  example  of,  544. 
CHANCERY  RECORDS. 

notice  afiforded  by,  449. 


580  INDEX. 

CHANCERY  RECORDS.     Continued. 

how  far  binding,  450. 
CHANCERY  JURISDICTION, 

at  common  law,  446. 

as  afiectecl  by  codes,  445. 

in  circuit  courts,  446. 

in  probate  courts,  447. 
CHANCERY  PROCEEDINGS. 

generally  considered,  444. 

as  affected  by  codes,  445. 

notice  afforded  by,  449. 

process,  450. 

service,  452. 

masters'  reporls,  455. 

verdicts,  455. 

abstract  of,  456. 

fraud,  accident  and  mistake,  458. 

injunctions,  458. 

ejectment,  460. 

quia  timet,  462. 

partition,  463. 

specific  performance,  466. 

redemption,  468. 

foreclosure,  468. 

dower,  470. 

divorce,  471. 

eminent  domain,  472. 

construction  of  wills,  474. 
CHATTELS  REAL, 

defined,  14,  498. 

not  the  subject  of  descent,  498,  503. 
CHARGE, 

what  is,  385,  386. 

created  by  deed,  386. 

created  by  will,  370. 

when  a  lease  is,  390. 
CHARTERS, 

of  corpoi'ations,  228. 

effect  on  titles,  228,  230. 
CHILDREN, 

words  synonymous  for,  353,  355. 

does  not  include  grandchildren,  356. 
when  meaning  lawful  children,  506. 
CLASS, 

devise  to,  358. 


INDEX.  5S1 


CLASSIFICATION", 

of  title,  10,  35. 

of  estates,  13. 

of  powers,  16. 

of  tenancies,  22. 

of  decrees,  412. 

of  covenants,  167. 

of  common  law  deeds,  201. 

of  corporations,  228. 

of  canons  of  descent,  498. 

of  beirs,  499. 

of  mortgages,  317. 

of  easements,  310. 
CLOUDS  UPON  TITLE, 

what  are,  549. 

how  noticed,  550. 

how  created,  550-1. 
CODICIL, 

defined,  372. 

effect  on  will,  373. 

how  shown,  378. 
COLOR  OF  TITLE, 

defined,  23,  520. 

what,  consisting  of,  520. 

possession  under,  effect  of,  23,  518,  521. 
COPARCENERS, 

who  are,  503. 
COMMISSIONER'S  CERTIFICATE, 

on  sale  of  State  lands,  119. 
COMMON  LAW  CONVEYANCE, 

bargain  and  sale,  189. 

release,  201. 

confirmation,  202. 

surrender,  202. 

assignment,  204. 
COMPILATION, 

of  abstract,  4,  56,  79. 

of  abstract  indexes,  67. 

of  chains  of  title,  81,  541,  544. 

extent  of  search,  79. 

course  of  title,  80. 
CONDEMNATION, 

proceedings  for,  473. 
CONDITION, 

in  deeds,  165. 

in  mortgages,  329. 

in  wills,  363. 


582  *  INDEX. 

CONDITION.     Continued. 

ettoct  upon  estates,  165,  210.  363. 

precedent  and  subsequent,  165,  363. 

distinguished  from  limitation,  165. 

when  in  the  nature  of  a  restriction,  209. 

when  repugnant,  209. 
CONDITIONAL  DEVISE, 

effect  of,  363. 
CONFISCATION, 

defined,  53. 

how  exercised,  54. 

reaches  what  estate,  54. 
CONFIRMATION, 

defined,  48. 

methods  of,  48. 

by  the  government,  121. 

effect  of,  122,  130. 

by  patent,  131. 

by  individuals  by  deed,  202. 

order  of,  on  judicial  sale,  432. 

effect  of,  432. 

how  shown  in  abstract,  114. 
CONGRESSIONAL  GRANTS, 

nature  and  effect  of,  121. 

construction  of,  123. 

formal  requisites,  124. 

abstract  of,  124. 
CONSANGUINITY, 

defined,  28. 

lineal  and  collateral,  28. 

methods  of  computing  degrees  of,  23,  80. 

rule  of  the  civil  law,  28,  30. 

table  of  degrees,  30,  499. 

line  of  succession,  498. 

general  rule  of  descents,  499. 

preferences,  500. 

how  affected  by  alienage,  500. 

proof  of  lineal  consanguinity,  506,  508. 

proof  of  collateral  consangumity,  506. 

pedigrees,  512. 
CONSIDERATION, 

effect  of,  in  deeds,  157. 

implied,  when,  158. 

not  essential  to  validity,  153. 

recital  of,  not  conclusive,  158. 
CONSTRUCTION, 

of  legislative  grants,  123. 


INDEX.  583 


CONSTRUCTION.     Continued. 
of  patents,  127. 

of  deeds,  181,186,  190. 

of  liuul  contracts,  290. 

of  wills  generally,  350. 

cf  wills  in  chancery,  474. 
CONSTRUCTIVE  NOTICE, 

what  is,  59. 

how  afforded,  60,  449. 

by  records,  60,  65. 

by  publication,  426,  454. 

decrees  rendered  on,  414. 

effect  of,  414. 
CONSTRUCTIVE  POSSESSION, 

defined,  522. 

requisites  of,  522. 
CONTINGENT, 

remainders,  364. 

reversion,  365. 
CONVERSION, 

equitable,  505. 
CONVEYANCES, 

from  the  United  States,  105,  106,  107,  121,  126. 

from  the  States,  133,  136. 
By  Individuals, 

with  warranty,  192,  197. 

without  warranty,  195. 

in  futiiro,  204. 

of  special  interests,  206. 

restrictive  and  conditional,  209. 

prohibited,  211. 

fraudulent,  212. 

subject  to  incumbrance,  212. 

assignments,  273. 
Special  Classes, 

to  husband  and  wife,  218. 

between  husband  and  wife,  219. 

to  married  women,  217. 

by  married  women,  220. 

by  tenants  in  common,  225. 

by  partners,  227. 

to  corporations,  2o2. 

by  corporations,  233. 

by  heirs  at  law,  238. 

by  delegated  authority,  208. 

in  trust,  243. 

of  expectancies,  239. 


584  INDEX. 

CONVEYANCES.     Continued. 
By  Officials, 

by  sheriffs,/250,  254. 

by  masters,  commissioners,  etc.,  254. 

by  trustees,  256,  259. 

by  executors  and  administrators,  264. 

by  guardians,  269. 
By  Operation  of  Law, 

estoppel,  38. 

forfeiture,  54. 

relation,  41. 

prescription,  42. 

escheat,  52. 
Agreements  for, 

generally  considered,  287. 

nature  and  requisites,  289. 

effect  and  operation,  288. 

construction  of,  290. 

relation  of  parties  thereunder,  288. 

as  affected  by  recording  acts,  290. 

assignment  of,  292. 

performance,  293. 

formal  parts,  291. 

abstract  of,  291,  295. 
COPIES, 

letter  press,  87. 

printed,  553. 

of  foreign  probate,  380. 
CORPORATIONS, 

classified,  228. 

right  to  acquire  and  transmit  land,  228. 

rules  for  determining  capacity,  229. 

how  affected  by  statute,  280. 

power  of  acquisition,  230. 

conveyances  to,  332. 

formal  requisites  of,  232. 

conveyances  from,  233. 

formal  requisites  of,  233. 

practical  example  of,  234. 

formalities  of  execution,  235. 

practical  examples,  236. 

seals  of,  237. 
Municipal, 

power  to  hold  land,  281. 

ordinances  of,  305. 

deeds  by,  231. 

liens,  389. 


INDEX.  685 


COVENANTS, 

when  implied,  159,  300,  301. 

by  what  worcls,  159,  300. 

when  expr  ss,  166. 

not  necessaiy  for  title,  160. 

when  woi-kiiig  an  estoppel,  38,  320. 

how  classified.  167. 

when  to  be  shown  in  abstract,  167. 

when  runninof  with  the  land,  168,  300. 

when  defective,  148. 

lecral  effect  of  defective  covenants,  149 
In  Deeds, 

effect  of,  193. 

how  shown,  194. 

effect  of  in  quitcla'ms,  197. 

covenants  of  non-claim,  198. 

against  acts  of  grantor,  199. 

implied  m  statutory  forms,  200. 
In  Official  Deeds, 

not  implied,  250,  254. 

bind  t.e  offi.er  personally,  250. 
In  Leases, 

when  implied,  301. 

what  words  raise,  300. 

effect  of,  301. 
In  Moktgages, 

when  working  estoppel,  320. 

statutory  woi\ls  of,  327,  328. 

effect  of,  328. 

special,  329. 
COVERTURE, 

disabilities  of,  217,  220. 
CREDITORS, 

assignment  for  benefit  of,  273. 

liens,  on  decedent's  real  estate,  347,  504. 
CURTESY, 

estate  by,  220. 

origin  of,  221. 

requisites  to  create  estate,  221. 

how  barred,  222. 

DATE, 

of  deed,  presumption  as  to  delivery,  173. 

of  will,  not  to  affect  devise,  348. 
DEATH, 

never  presumed,  507. 

official  registration  of,  508. 


586  INDEX. 

DEATH.     Conthiued. 

proof  of,  507. 

probate  of,  509. 

wills  speak  from,  and  not  date,  348. 
DEBTS, 

when  a  charge  on  land,  370,  504. 

devises  for  payment  of,  370. 

liability  of  heir  for  payment,  504. 

liability  of  devisee,  371. 
DECLARATION, 

of  vacation,  148. 

of  trust,  245. 

when  allowable  to  prove  marriage,  510. 
DECREE, 

defined,  403. 

distinguished  from  judgment,  403. 

classified,  412. 

final  or  interlocutory,  412. 

operation  and  efl'ect  of,  413. 

lien  of,  415. 

how  rendered,  414. 

errors  and  defects  in,  417. 

formal  requisites  of,  415. 

abstract  of,  417. 

sales  under,  420. 

on  probate  of  wills,  379. 
DEDICATION, 

defined,  47. 

express  or  implied,  47. 

no  particular  form  necessary  to  constitute,  47. 

intent  the  vital  principle,  47. 

common  law  dedication,  47. 

statutory  dedication,  48. 
By  Deed, 

what  must  appear,  213. 

recitals  indicative  of  dedication,  214. 

distinguished  from  private  right  of  way,  214. 
By  Plat, 

effect  of  platting  and  registration,  147. 

sale  by  plat,  what  passes,  149. 

distinguished  from  reservation,  150. 

common  law  and  statutory,  150. 

when  the  dedication  fails,  150. 
DEFINITION, 

of  abstract,  2. 

of  property,  9. 

of  title,  9. 


INDEX.  587, 


DEFINITION.     Continued. 
of  allodial  title,  13. 
of  easements,  21. 
of  color  of  title,  23. 
of  consanguinity,  28. 
of  affinity,  31. 
of  adoption,  31. 
of  purchase,  35. 
of  descent,  26,  495. 
of  deed,  36. 
of  devise,  36. 
of  estoppel,  40. 
of  prescription,  42. 
of  accretion,  43. 
of  confirmation,  48,  202. 
of  occupancy,  48. 
of  avulsion,  45. 
of  dedication,  47. 
of  escheat,  52. 
of  records,  56. 
of  notice,  59. 
of  land  entry,  92. 
of  pi-e-emption,  93. 
of  patents,  126. 
of  release,  201. 
of  surrender,  202, 
of  official  conveyances,  248. 
of  assignments,  273. 
of  lease,  297. 
of  rent,  302. 
of  mortgage,  316. 
of  merger,  321. 
of  devise,  348. 
of  precatory  words,  368. 
of  codicil,  372. 
of  probate.  379. 
©f  lien,  385. 
of  lis  i)en(lciis,  396. 
of  judgments  and  decrees,  403. 
of  judicial  and  execution  sales,  420. 
of  process,  450. 
of  injunction,  458. 
of  ejectment,  460. 
of  quia  timet,  462. 
of  foreclosure,  469. 
of  taxation,  476. 
of  tax  title,  478. 


588  INDEX. 

DEFINITION.     Continued. 

of  coparceners,  503. 

of  equitable  conversion,  505. 

of  adverse  possession,  518. 
DEEDS, 

by  individuals,  189. 

by  officers,  248. 

by  corporations.  228. 

by  trustees,  256. 

ancient,  175. 

registration  of,  61,  156. 

delivery  of,  173. 

general  requisites  of,  152  et  seq, 

construction  of,  190. 

validity  of,  191. 
Classes  of  Deeds, 

deeds  poll  and  indentures,  190. 

bargain  and  sale,  192. 

warranty,  192. 

quitclaim,  195. 

special  warranty  and  non-claim,  198. 

statutory  forms,  200. 
Common  Law  Deeds, 

release,  201. 

confirmation,  202. 

surrender,  202. 

assignment,  204. 
Re-records  and  Duplicates, 

effect  of,  215. 

how  shown,  216. 
Special  Forms, 

marriage  bettlements,  217. 

partition  deeds,  225. 

corporation  deeds,  233. 

trust  deeds,  243. 
Official  Deeds, 

sheriff's,  on  execution,  250,  253. 

sheriff's,  under  decree,  254. 

master's,  commissioner's,  etc.,  254. 

trustee's,  259. 

mortgagee's,  262. 

executor's,  264. 

administrator's,  265. 

guai-dian's,  269. 

assignee's,  283. 

tax,  488. 


INDEX.  689 


DEEDS.     Coufiiiued. 
FoKMAL  Parts  of, 

the  parties,  152. 

name  of,  155. 

date  of,  155. 

consideration,  157. 

words  of  grant,  158. 

words  of  purchase  and  limitation,  IGO. 

description,  161. 

recitals,  16:J,  1G4,  165. 

habendum,  163. 

covenants,  166. 

execution,  168. 

signature  and  seals,  169. 

attestation,  170. 

acknowledgment,  171. 
DEFECTS, 

in  deeds,  177. 

in  wills,  373. 

in  legal  proceedings,  417. 

in  parties,  178. 

in  covenants,  184. 

in  acknowledgment,  185. 
DEGREES, 

of  consanguinity,  28. 

how  computed,  29. 

table  of,  30. 
DEMISE, 

words  of,  299. 

of  agricultural  lands,  301. 
DELEGATED  AUTHORITY, 

conveyance  by,  239. 

abstract  of,  240. 

requisites  of,  240. 

can  not  be  substituted,  243. 
DELIVERY, 

of  patents,  127. 

of  deeds,  173. 

necessity  of,  173. 

what  constitutes,  174. 

when  to  be  presumed,  174-175. 
DESCENT, 

title  by,  26,  495. 

nature  of  title,  26,  495. 

rules  of,  27,  499. 

how  regulated,  27,  498. 

who  may  take,  500,  502. 


590  INDEX. 

DESCENT.     Continued. 

■what  descends,  503. 

validity  of,  510. 

abstract  of,  511. 

when  directed  by  will,  351, 
DESCRIPTION, 

of  devisees,  367. 

of  parties  in  deeds,  152. 

in  judgments,  417. 

in  legal  proceedings,  436. 

of  property,  161. 

necessary  requisites,  161. 

how  construed,  162. 

errors  in,  how  shown,  182. 

when  void  for  uncertainty,  182. 

omissions,  183. 

false  reciials  of  quantity,  183. 
DESTRUCTION, 

of  records,  effect  of,  63. 

of  leased  premises,  300 
DETERMINABLE  FEE, 

what  is,  210. 
DEVISE, 

title  by,  36,  347. 

defined,  348. 

operation  and  effect  of,  348. 

validity  of,  349. 

of  income  of  lands,  359. 

to  a  class,  353,  358. 

tomaiTied  women,  365. 

to  executors  in  trust,  366. 

to  devisee  by  description,  367. 

for  payment  of  debts,  370. 

with  power  of  disposition,  359. 

indeterminate,  362. 

on  condition  precedent,  363. 

lapsed,  369. 
DISABILITY, 

persons  under,  exceptions  in  favor  of,  526. 
DISCHARGE, 

in  bankruptcy,  285. 

of  mortgage,  341. 

of  jiKlgment,  411. 
DISPOSITION, 

devise  with  power  of,  359. 

of  public  lands,  91. 


INDEX.  591 


DIVORCE, 

effect  of  on  heirship,  471. 

effect  of  on  title,  471-2. 

as  an  extinguisliment  of  dower,  472. 
DOCUMENT  NUMBER  INDEX, 

nature  and  office,  71. 

illustration  of  page,  71. 
DOMINANT  ESTATE, 

in  respect  to  easements,  21. 
DONEE, 

of  a  power,  359. 

esta,te  taken  by,  360. 

effect  of  conveyance  by,  360,  533. 

example  of  in  passing  title,  532. 
DOWER, 

estate  of,  18. 

nature  and  incidents,  19. 

as  regulated  by  statute,  19. 

how  ban-ed,  19,  222. 
Release  op, 

how  effected,  19,  223. 

not  the  subject  of  transfer  when  inchoate,  20. 

must  be  to  owner  of  the  fee,  224. 

may  be  accomplished  by  separate  deed,  224. 

operates  only  by  estoppel,  223. 
Assignment  of, 

by  parol,  470. 

by  probate  court,  470. 

by  circuit  court,  470. 

incidents  to,  470. 
DUPLICATE, 

receipt  of  receiver,  92. 

tax  deed,  489. 

deeds  and  re-records,  215. 

how  shown,  219. 

EASEMENTS, 

defined,  21. 

how  created,  21,  310. 

merger  in  dominant  estate,  22. 

special  easements,  22. 

distinguished  from  license,  22. 

when  existing  as  appurtenant,  21,  310. 

when  in  gross,  310. 

how  transfei-red,  310. 
EJECTMENT, 

origin  and  history,  4G0. 


502 


INDEX. 


EJECTMENT.     Confinuecl. 

by  whom  brought,  461. 

operation  and  effect,  461-2. 

as  an  estoppel,  461. 
EFFECT, 

of  adverse  possession,  527. 

of  probate  of  will,  379. 
EMINENT  DOMAIN, 

defined,  50,  472. 

how  exercised,  50,  52,  473. 

incidents  of,  50,  473. 

title  by,  51,  473. 

abstract  of  proceedings,  52,  473-4. 
ENGLISH  METHOD, 

of  abstracting,  3. 

of  examining  muniments,  532. 

of  making  requisitions,  537. 

and  objections,  538. 
ENTAIL, 

by  deed,  160. 

by  will,  353. 

rule  in  Shelly's  case,  160,  355. 
ENTRY, 

original,  book  of,  70. 

under  U.  S.  land  laws,  92. 

how  made,  92,  93. 

title  conferred  by,  93. 

what  land  subject  to,  95. 

pre-emption,  95. 

homestead,  101. 

conveyances  before,  98. 

rights  acquired  by,  97,  101. 

on  lands  by  forfeiture, 

adverse,  518. 

under  claim  of  right,  522. 

under  color  of  title,  521. 

naked,  523. 

clandestine,  519. 
EQUITY  OF  REDEMPTION, 

nature  of,  317,  318. 

original  meaning,  318. 

present  meaning,  319. 

when  barred,  319,  469. 

foreclosure  of,  469. 
EQUITABLE,. 

estates,  321. 

mortgages,  322. 


INDEX.  593 


EQUITABLE.     Continued. 

proceedings,  444. 

estoppel,  40. 
EQUITABLE  MORTGAGE, 

what  is,  322. 

legal  import,  323. 

how  determined,  324. 

effect  of,  322,  323. 
EQUITABLE  CONVERSION, 

what  is,  505. 

when  sufficient  to  defeat  title,  505. 
ERRORS  AND  DEFECTS, 

in  deeds,  177. 

in  wills,  373. 

in  judgments  and  decrees,  417. 

in  execution  and  judicial  sales,  421. 

in  tax  proceedings,  481,  488. 
ERRONEOUS  OPINIONS, 

liability  for,  563. 

decree  of  skill  required,  564. 
ESCHEAT, 

defined,  52. 

title  by,  52. 

depends  on  positive  statute,  53. 

results  from  public  policy,  53. 

title  by,  how  perfected,  53. 

nature  of  the  title  conferred  by,  53. 
ESSENTIALS, 

of  abstracts,  3. 

of  deeds,  151. 

of  wills,  373. 

of  judgments,  409. 
ESTATES, 

under  allodial  titles,  13. 

in  fee  simple,  13. 

nature  and  extent  of  in  the  United  States,  14. 

for  life,  14. 

for  years,  14. 

future  estates,  14,  204. 

of  homesteads,  17. 

of  dower,  19. 

of  tenancy,  22. 

conveyed  by  patents,  126. 

under  a  dedication,  150. 

conveyed  by  deed,  151. 

effect  of  words  of  grant,  158,  352. 
38  * 


. 594  INDEX. 

ESTATES.     Confinued. 

of  purchase  and  limitation,  160,  353. 

rale  in  Shelly's  case,  160,  355. 

eifect  of  warranty  deed,  192. 

of  quitclaim  deed,  195. 

of  release,  201. 

of  surrender,  202. 

to  vest  infuturo,  204. 

as  affected  by  qualifying  words,  206. 

of  the  ent'rety,  218. 

in  common,  225. 

undivided,  227. 

held  by  corporations,  232. 

by  attorneys  in  fact,  241. 

by  trustees,  243,  264. 
ESTOPPEL, 

defined,  37. 

not  a  method  of  acquiring  title,  37. 

not  favored  in  law,  37, 

mutuality  an  essential  ingredient,  37. 

third  parties  not  bound  by,  37. 

can  not  work  to  transfer  property,  41,  462. 

does  not  apply  to  a  State,  41,  526. 
Technical  Estoppel,  38. 

arises  from  deeds  and  records,  38. 

by  judgment,  38,  461. 

by  deed,  38. 

raised  by  covenants,  39. 
Equitable  Estoppel,  40. 

rests  i}t  pais,  40. 

how  created,  40. 
EXAMINATION, 

of  records,  57,  64,  76. 

right  of,  57. 

of  abstracts,  529. 
EXAMINATION  OF  TITLE, 

distinguished  from  abstract, 
EXAMINER, 

qualifications  of,  6. 

liability  for  error,  7. 
EXAMINER'S  NOTES, 

how  made,  86. 

what  to  contain,  86. 

of  source  of  information.   195. 

of  adverse  conveyances,  516. 
EXCEPTIONS, 

defined,  164. 


INDEX.  595 


EXCEPTIONS.     Continued. 

distinguished  from  reservations,  164. 

requisites  of,  165. 
EXECUTORS, 

oifice  and  duties,  264. 

power  over  land,  264. 

may  sell,  when,  265, 

devises  to,  in  trust,  366. 
EXECUTION, 

of  deeds,  168. 

signature,  169, 

seal,  169. 

acknowledgment,  171. 
EXECUTION  SALE, 

defined,  420. 

distinguished  from  judicial  sale,  420. 

validity  and  efi'ect,  421. 

title  under,  423. 

when  title  vests,  423. 

the  writ,  424. 

the  levy,  424. 

notice  of  sale,  425. 

proof  of  publication,  426. 

as  affected  by  death,  427. 

exemptions  from,  428. 
EXEMPTION, 

from  the  lien  of  judgments,  412. 

from  levy  and  sale,  428. 

from  taxation,  477. 

inquiries  necessary  to  ascertain,  428. 

effect  of  sale  of  exempt  property,  428. 

FEE  SIMPLE, 

defined,  13. 
FIELD  NOTES, 

of  government  surveys,  69. 

how  compiled,  69. 

when  conclusive,  70. 
FLAWS, 

what  are,  548. 

how  remedied,  549. 
FORECLOSURE, 

by  advertisement,  336. 

in  chanceiy,  468. 

strict  foreclosure,  468. 

incidents  to  be  observed,  469. 
FOREIGN  PROBATE,    ' 

effect  of,  380. 


596  INDEX. 

FORFEITURE, 

defined,  54,  483. 

not  favored  in  law,  54,  210. 

nature  of,  54. 

as  a  method  of  acquiring  title,  54. 

for  breach  of  condition,  210. 

for  non-payment  of  taxes,  483. 
FORMAL  REQUISITES, 

of  patents,  183,  136. 

of  deeds,  151,  489. 

of  wills,  373. 

of  judgments,  409. 

of  decrees,  415. 

of  plats  and  subdivisions,  145. 
FRAMING  OPINIONS, 

remarks  on,  554. 

different  methods  of,  555. 

from  personal  examinations,  555. 

practical  example,  556. 

from  examination  of  abstract,  558. 

practical  example,  560. 
FRAUD, 

when  equity  will  relieve  against,  458. 

when  vitiating  conveyances,  212. 

can  not  be  made  a  foundation  for  an  adverse  title,  522. 

GENERAL  LAND  OFFICE, 

officers  of,  24. 

jurisdiction  of,  24. 

tract  book,  68. 
GIFT, 

of  income  of  realty,  359. 
GOVERNMENT. 

tract  book,  68. 

necessity  of  copy  of,  68. 

what  to  contain,  69. 

surveys,  69. 

field  notes  of,  69. 

use  of,  69. 
GRADUATION  ENTRIES, 

object  of,  99. 

how  made,  99. 
GRANTORS, 

individual,  152. 

corporate,  233.  ' 

official,  249. 

defective  description,  178. 

want  of  capacity  in,  152. 


IKDEX.  591 


GRANTOR  INDEXES, 

use  of,  64. 

duty  of  recorder,  65. 

effect  of  omission  in,  65. 
GRANTEES, 

in  deeds,  how  described,  153. 

in  wills,  349,  367. 

HABENDUM, 

its  office,  163. 

when  necessary  to  be  shosra,  207. 
HEIRS, 

title  of,  9,  26,  32,  496. 

at  law,  defined,  26. 

conveyances  by,  33. 

how  affected  by  ancestral  covenants,  503. 

how  affected  by  ancestral  debts,  504. 

how  the  succession  may  be  defeated,  504-5. 

right  of  representation,  499. 

of  half  blood,  502. 

adoptive,  31,  502. 

surviving  consorts,  502. 

coparceners,  503. 
HEIRSHIP, 

nature,  operation  and  incidents  of,  496. 

its  rights  and  privileges,  493. 

line  of  succession,  498. 

preferences,  500. 

whole  and  half  blood,  502. 

proof  of,  32,  506. 

proof  of  death  of  ancestor,  507. 

proof  of  bhth  and  legitimacy,  510. 

pedigrees,  512. 
HEREDITAMENTS, 

at  common  law,  310. 

in  the  United  States,  310. 
HOMESTEADS, 

defined,  17. 

nature  of,  17. 

when  estates,  17. 

liow  ascertained,  17. 

how  lost,  18. 

as  regulated  by  statute,  IS. 

essentials  of  conveyance  of,  18. 
nOM ESTE AD  ENTRl  ES, 

nature  of,  100. 

rights  acquired  by,  101. 


598  INDEX. 

HUSBAND  AND  WIFE, 

conveyances  to,  218. 

conveyances  between,  219. 

conveyances  by,  222,  224. 

legal  relations  of,  218,  219,  220. 
HYPOTHETICAL  EXPRESSIONS, 

should  not  be  used,  561. 

INCEPTIVE  MEASURES, 

how  shown  in  abstract,  109,  110. 

land  office  entry,  110. 

donative  acts  and  grants,  112,  113. 
INCOME, 

effect  of  gift  of,  359. 
INCORPOREAL  HEREDITAMENTS, 

at  common  law,  310. 

■when  exercised  in  this  country,  310. 
INCUMBRANCE, 

what  is,  316,  885. 

conveyances  subject  to.  212. 

effect  of  recitals  in,  213. 
INDEX, 

grantor  and  grantee,  64. 

plaintiff  and  defendant,  65. 

tax,  66,  74. 

examiner's  private,  67, 

importance  of,  67. 

of  what  consisting,  68,  69,  70. 

how  kept,  6S,  77. 

tract,  72. 

document  number,  71. 

irregular,  74. 

judgment,  75. 
INDIAN  TITLE, 

by  occupation  only.  49. 

does  not  extend  to  the  fee,  49. 

can  not  be  conveyed,  49. 
INFORMALITY, 

in  deeds,  177,  185,  193. 

in  wills,  373. 

in  mortgages,  330. 

in  judgments,  409. 
INHERITANCE, 

not  a  natural  right,  26,  496. 

only  accrues  to  the  issue  of  lawful  wedlock,  27,  506. 

canons  of,  26,  27,  28. 

nature  and  incidents  of,  496. 


INDEX. 

INHERITANCE.     Confiiuied. 
as  dependent  on  seizen,  497. 
estate  of,  26,  496. 
INJUNCTION, 
defined,  4  J8. 
when  allowable,  459. 
how  shown,  459. 
INQUIRIES  IN  PAIS, 

to  demonstrate  adverse  possession,  528. 
to  show  fiict  of  death,  507. 
to  show  fact  of  marriage,  332,  510. 
to  show  fact  of  birth,  510. 
to  show  homestead  occupancy,  332. 
INTENT, 

in  dedication,  149,  213. 
in  deeds,  190. 
in  wills,  350,  357. 
INTERNAL  IMPROVEMENT  GRANTS, 
how  created,  107. 
how  construed,  107. 
INTESTATE, 
defined,  496. 
proof  of  death  of,  507. 
probate  and  settlement,  509,  513. 
INTRODUCTORY, 
observations,  1. 
matter  to  abstract,  110. 
INSOLVENCY, 

generally  considered,  278. 
IMPLIED, 

covenants,  301. 
dedication,  149. 
IRREGULAR, 
index,  74. 
convey,  noes,  304. 
what  are,  74,  304. 
ISLAND, 

ownership  of,  44. 
rule  for  dividing,  44. 
ISSUE, 

defined,  353,  356. 
as  word  of  limitation,  353. 
when  meaning  children,  353,  355. 
JOINT  TENANTS, 

who  are,  225. 
JUDGMENT, 
defined,  403. 


699 


600  INDEX. 

JUDGMENT.     Continued. 

distinguished  from  decree,  403. 

operation  and  effect  of,  404. 

lien  of,  404. 

formal  requisites  of,  409. 

abstract  of,  410. 

satisfaction  of,  411. 

against  deceased  person,  412. 

sale  under,  421. 
JUDGMENT  INDEX, 

how  compiled,  75. 

practical  example,  76. 
JUDICIAL  SALES, 

defined,  420. 

distinguished  from  execution  sales,  420. 

validity  and  effect,  428. 

how  conducted,  429. 

title  under,  429. 

rights  of  purchcaser,  430. 

enforcing  sale,  430. 

confirmation  of,  432. 

effect  of  confirmation,  432. 

certificate  of  sale,  485. 

proof  of  title  under,  436. 
JURISDICTION, 

the  great  essential  to  legal  proceedings,  judgments  and  sales,  448. 

of  chancery  courts,  446. 

of  probate  courts,  447. 

LAND  WARRANTS, 

military,  102. 
LAND  SCRIPT, 

Virginia,  108. 

half  breed,  103 

private,  104. 

agricultural  college,  104. 

by  whom  located,  104. 
LAPSED  DEVISE, 

when  occurring,  369. 

effect  of,  370. 
LAYING  OUT  BOOKS, 

sections  and  subdivisions,  76. 

names,  77. 

scale  for  indexing,  77. 
LEASE, 

defined,  297. 

mterest  conveyed  by,  297. 


INDEX.  601 


LEASE.     ContUtued. 

nature  and  requisites,  297. 
when  must  be  in  writing,  297. 
lease  in  fee,  298. 
formal  parts  of.  298. 
how  shown,  298. 
abstract  of,  299. 
words  of  demise  in,  299. 
Covenants  in, 
implied  covenants,  000,  001. 
wbich  run  with  the  land,  80D. 
how  protected,  301. 
Op  Aguicultural  Lands, 
when  void,  001. 
period  permitted,  301. 
Assignment  op, 
how  made,  302. 

must  be  for  the  whole  term,  302. 
when  only  a  sub-lease,  303. 
LIENS, 

prencrally  considered,  385. 
defined,  385. 
how  created,  386. 
operation  and  effect  of,  386. 
how  shown  in  abstract,  386. 
Of  Mortgages, 
generally  considered,  316,  387. 
merger  of,  322. 
for  purchase  money,  324,  331. 
on  homestead,  301. 
how  terminated,  041. 
Of  Dower, 

generally  considered,  387. 
Of  Judg.ments, 
generally  considered,  388,  403. 
n.iture  and  effect  of,  405. 
duration  of,  406. 
priority,  407. 
abstract  of,  410. 
Of  Attachment, 
generally  considered,  358,400. 
extent  of  lien,  400. 
Of  Decedent's  Debts, 
generally  considered,  388,  504. 
nature  <  f,  504. 
how  terminated,  505. 


C02  INDEX. 

LIENS.     Continued. 
Op  Taxes, 
generally  considfred.  388.  476. 
when  attaching,  388,  478. 
nature  and  effect  of,  389,  481. 
Op  Opticial  Bonds, 
nature  of  lien,  389. 
how  noted,  389. 
Op  Vendoks, 
when  preserved,  324,  390. 
nature  and  effect  of,  324,  391. 
when  undisclosed,  391. 
Of  Mechanics, 
nature  of  lien,  391. 
priority  of,  392. 

estate  to  which  it  attaches,  893. 
limitation  of,  394. 
assignability,  394. 
foreclosure  of,  395. 
notice  of,  392,  552. 
LEGAL  ESTATES, 

distinguished  from  equitable,  11. 
LEGISLATURE, 
grants  by,  121. 

the  repository  of  the  taxing  power,  476. 
LEGISLATIVE  GRANTS, 
generally  considei^ed,  121. 
nature  and  effect  of,  121. 
how  construed,  123. 
the  highest  evidence  of  title,  122. 
formal  requisites  of,  124. 
abstract  of,  124. 
LETTERS, 
initial,  87. 

when  permissible,  87. 
of  middle  names,  178. 
correspondence,  312. 
effect  as  evidence,  313. 
LEVY, 

of  execution,  424. 
how  made,  424. 
how  shown,  425. 
of  attachment,  400. 
how  made,  400. 
how  shown,  401. 
certificates  of,  401. 


INDEX.  603 


LIABILITY, 

of  examinor  for  error,  7. 

must  be  privity  of  contract  to  produce, 

extends  only  to  dates  covered,  8. 

of  attorneys  for  error,  563. 
LICENSE, 

defined,  22. 

distincjuished  from  easement,  22. 
LIMITATION, 

period  of,  43. 

special,  tax  deeds,  493. 

special,  adverse  conveyances,  527. 

in  deeds.  165. 

in  •wills,  357. 

of  mechanic's  lien,  394. 
LIMITATION  OF  TERM, 

in  leases,  words  of,  299. 
LIS  PENDENS. 

doctrine  of,  396. 

at  common  law,  397,  • 

under  statutes,  393. 

notice  of,  399. 

property  incidentally  affected  by,  399. 

how  shown,  399.  456. 

by  chancery  records,  449. 
LOCATION, 

by  warrant,  102. 

how  made,  102. 

MAP, 

of  township,  136. 

of  sectional  subdivision,  140. 

of  fractional  section,  141. 

sketch  of,  545. 
MARRIAGE  SETTLEMENTS, 

how  made,  217. 

operation  and  effect  of,  218. 

how  construe'!,  218. 
MARRIED  WOMEN, 

conveyances  to,  by  deed,  206,  217. 

conveyances  to,  by  will,  206,  365. 

conveyances  by,  220. 

effect  of  same.  222. 
MARGINAL  DISCHARGE, 

effect  of,  343. 

when  made  by  assignee,  344. 

abstract  of,  344. 


CO-i  INDEX. 

MARGINAL  NOTES, 

th(iir  use  in  England,  5o6. 
of  what  consisting,  537. 

substitutes  for,  538. 

answers  to,  539. 
MASTERS, 

sales,  255,  429. 

certificates,  435. 

reports,  455. 

deeds,  255. 
MEANDER  LINES, 

how  run,  143. 

the  purpose  of,  143. 

effect  on  fractional  divisions,  144. 
MERGER, 

doctrine  of,  321. 

when  occurring,  321, 

effect  of,  321,  322. 

rule  of.  322. 
METHODS, 

of  abstracting,  3. 

of  acquiring  title,  9,  35. 

of  dividing  alluvial  increase,  44. 

of  indexing,  67. 

of  laying  out  books,  76. 

of  disposing  of  public  lands,  90. 

of  dividing  public  lands,  137. 

of  partition,  465. 

of  foreclosure,  469. 

of  showing  adverse  deeds,  516. 

of  fniming  opinions,  556. 
MILITARY  WARRANTS, 

location  by,  102. 

how  made,  102. 
MINERAL  LANDS, 

not  subject  to  entry,  95. 
MISDESCRIPTION, 

uncertainty,  182. 

omission,  183. 

wrong  quantity,  183. 

how  affecting  deeds,  182. 
MISTAKE, 

when  equity  will  relieve  against,  458. 

when  equity  will  not  relieve  against,  431. 

can  not  be  made  the  basis  of  an  adverse  title,  523. 
MISTAKE  OF  FACT, 

distinguished  from  mistake  in  law,  431. 


INDEX.  GO  5 


MONUMENTS, 

alwa3-s  govern  in  fixing  boundaries,  1G2. 
MORTGAGES, 

defined,  316. 

nature  of,  317. 

classified,  317. 

legal  mortgages,  325. 

equitable  mortgages,  322. 

statutor}'  forms,  327. 

abstract  of,  320. 

for  purchase  money.  331. 

of  the  homestead,  331. 

of  after-acquired  property,  333. 

record  of,  334. 

re-record  of,  335. 

how  affected  by  estoppel,  320. 

effect  of  covenants,  328. 

of  special  covenants,  329. 

of  stipulations  and  conditions,  329. 

of  informality,  330. 

of  misdescription,  327. 

cf  merger,  321. 

power  of  sale  in,  338. 

assignment  of,  339. 

release  of,  341. 

marginal  discharge  of,  343. 

foreclosure  of,  344,  468. 

methods  employed,  469. 

how  shown,  46 J. 
MORTMAIN, 

statutes  of,  230. 

how  far  observed  in  the  U.  S.,  230. 
MUNICIPAL,- 

deeds,  2  U. 

ordinances,  305. 

resolutions,  307. 
liens,  389. 

NAMES, 

of  parties  in  deeds,  152. 

in  wills,  306,  367. 

in  legal  proceedings,  418. 

defects  in,  how  shown,  178. 

variance  in,  179. 

how  construed,  180. 
NATURE  OF  TITLE, 

in  England,  11. 

in  the  United  States,  12. 


606  INDEX. 

NAVIGABLE  WATERS, 

at  common  law,  46. 

considered  in  respect  to  riparian  proprietors,  46,  47. 
NEW  ENGLAND  ABSTRACTS, 

how  compiled,  567. 

example  of,  568. 
NON  COMPOS  MENTIS, 

may  take,  but  not  grant,  155,  349. 
NON-CLAIM, 

deeds  of,  198. 

covenant  of,  198. 

how  shown,  199. 

legal  effect  of,  199. 
NOTES, 

examiners,  86,  194. 

when  to  be  made,  86,  516. 

what  to  contain,  86,  516. 
NOTE  TAKING, 

general  utility  of,  531. 

Mr.  Sugden's  views,  531. 

Mr.  Bishop's  views,  531. 
NOTICE, 

doctrine  of,  59. 

constnictive  notice,  59. 

actual  notice,  60. 

afforded  by  records,  60,  449. 

who  are  chargeable  with,  60,  61,  449. 

lis  pendens,  65. 

by  possession,  334,  524,  551. 

by  publication,  426,  452,  454. 

of  sale,  425. 

how  given,  425. 

how  shown,  426. 

proof  of,  426. 
NUNCUPATIVE  WILLS, 

not  considered  in  examination  of  title,  347. 

OBJECTIONS  TO  TITLE, 

how  made,  536. 

how  met,  539. 
OCCUPANCY, 

title  by,  48,  518. 

not  recognized  in  the  United  States,  45. 

the  Indian  title  of,  49. 

as  understood  in  England,  49. 

under  statute  of  limitation,  518. 

when  notice  of  occupier's  rights,  524. 


INDEX.  607 


OMISSION, 

effect  of  in  instruments,  177,  183. 
OFFICIAL, 

certificate  of  search,  66. 

certificates  generally,  308. 

bonds,  389. 

registration  of  death,  etc.,  503. 

aids  to  search.  64. 
OFFICIAL  I  EllTlFlCATES, 

classified,  308. 

effect  as  evidence,  308. 

when  to  be  shown  fully,  309. 

when  briefly,  309. 

practical  examples,  309. 

of  Secretary  of  State,  809. 

of  levy,  401. 

of  sale,  433,  435,  487. 

assignment  of,  436. 

of  proof  of  will,  378. 
ORAL  OPINIONS, 

undesirability  of,  562. 

dangers  attending,  563. 
ORDER  OF  CONFIRMATION", 

when  required,  432. 

effect  of,  432. 

when  invalid,  433. 
ORDINANCE. 

nature  and  requisites,  305. 

when  to  be  shown,  305. 

practical  example,  306. 

operation  and  effect,  301. 

distmguished  from  resolution,  307. 
ORIGIN, 

of  abstract,  2. 

of  American  land  titles,  11,  12,  133,  134. 

of  ejectment,  460. 

of  pi"e  enipt  on,  95. 

of  school  hind  reservation,  106. 

of  homestead  entries,  100. 

of  swamp  hind  titles,  105. 
ORIGINAL  ENTRY  BOOKS, 

nature  and  office,  70. 

how  compiled,  70. 

illustration  of  page,  70. 
OUSTER, 

of  co-tenants,  525. 


60  8  INDEX. 

PARTIES, 

imperfect  desig'nation  of,  152,  154. 

misnomer  of,  180. 

how  shown  in  abstract,  152. 

want  of  capacity  in,  153,  349. 

must  be  named  or  described  as  such,  154,  367. 

discrepancies  in  names  of,  178, 180. 

need  not  be  named  if  sufficiently  described,  367. 
PARTITION, 

how  effected  by  deed,  225. 

abstract  of  deed,  226. 

by  legal  proceeding,  463. 

abstract  of  partition,  465. 

who  may  have  partition,  463. 

effect  of  decree  in,  464. 

when  proof  of  heirship,  464. 

when  occurring  in  divorces,  471, 
PARTY  WALLS, 

agre  ment  for,  310. 

nature  of,  311. 

abstract  of,  312. 
PARTNERSHIP, 

conveyances,  227. 

execution  and  effect  of,  227. 
PASSING  TITLE, 

observations  on,  546. 
PATENTS, 

defined, 126. 

nature  of,  126. 

operation  and  effect  of,  130. 

formal  requisites  of,  133. 

a,s  evidence  of  title,  126. 

how  executed,  127. 

delivery  of,  not  essential,  127. 

land  office  record  of,  129. 

how  proved,  1;]0. 

are  presumptive  of  their  own  regularity,  132. 

from  the  United  States,  126. 

from  the  States,  133. 

effect  of  State  patents,  134-5. 

requisites  of  State  patents,  136. 

abstract  of,  133. 
PATENT  SYSTEMS, 

of  abstracts,  utility  of,  67. 
PEDIGREE, 

use  of  in  examinations,  79,  511. 


INDKX.  609 


PEDIGREE.     Conthnierl. 

how  compiled,  79,  511. 

example  of,  512. 
PENDENTE  LITE, 

effect  of  purchase,  396. 

notice  afforded  by,  397. 

in  case  of  paramount  claim,  397. 

when  suit  has  been  dismissed,  397. 

effect  of  revivor,  398. 

notice  lis  pendens,  398. 

when  to  be  recorded,  399. 

abstract  of,  399. 

property  drawn  incidentally  in  question,  399. 
PERFORMANCE, 

when  enforced  in  equity,  466. 

of  purchase  at  judicial  sale,  431. 

action  for,  how  shown,  467. 
PERPETUITY, 

of  leasehold  estate,  301. 

attempts  to  a-eate  by  devise,  369. 

invalidity  of,  3G9. 
PERUSING  THE  ABSTRACT, 

Mr.  Sugden's  method,  529. 

the  author's  method,  530. 

object  of  perusal,  530. 

notes  as  assistants,  531. 

opinions  as  to  their  value,  531. 

examination  of  the  muniments,  532. 

points  to  be  observed,  532. 

in  deeds,  533. 

in  legal  proceedings,  535. 

requisitions  during  perusal,  536. 

how  made,  538. 

formulating  result  of  perusal,  540. 

analysis  of  title,  540,  544. 

inquiries  in  j)nis,  551. 
PLAINTIFF  AND  DEFENDANT  INDEXES, 

use  of,  65. 
PLATS, 

defined,  144. 

use  and  importance  in  conveyancing,  145. 

formal  requisites  of,  145. 

what  must  be  shown,  145. 

appended  matter,  145. 

effect  of  registration  of,  147. 

vacation  and  cancellation  of,  147. 
39 


610  INDEX. 

PLATS.     Conthmed. 

dedication  by,  149. 

abstract  of,  146. 
POSSESSION, 

prima  facie  evidence  of  title,  43,  518,  524. 

adverse,  518. 

under  color  of  title,  521. 

under  claim  of  title,  522. 

tacking,  523. 

as  notice,  524. 

constructive,  521. 

naked,  523. 

of  tenants  in  common,  525. 

of  tenant,  524. 

of  vendee  under  land  contract,  524. 

of  grantor,  525. 

of  trespassers,  523. 

under  tax  deeds,  493. 
POWERS, 

nature  and  effect,  16,  257. 

hov?  classified,  16. 

how  created,  16. 

as  regulated  by  statute,  16. 

how  exercised,  17,  248. 

construction  of,  17. 
In  Deed, 

power  of  sale,  257,  261,  262,  263. 

distinguished  from  trust  of  sale,  257. 

must  be  strictly  construed,  263. 
In  Wills, 

conferred  on  executors,  264,  866. 

of  disposition,  359. 

of  appointment,  367. 

of  sale,  366,  370. 
Of  Officeks, 

generally  considered,  248. 

of  sheriffs,  250,  252. 

of  masters,  commissioners,  etc.,  254. 

of  trustees,  256,  270. 

of  mortgagees,  262. 

of  executors,  264. 

of  administrators,  265. 

of  assignees, 
Of  Attorney, 

generally  considered,  240,  241- 

how  executed,  240. 
.formal  requisites  of,  241. 


INDEX.  611 

POWERS.     Continued. 

right  to  revoke,  241. 

when  coupled  with  an  interest,  241. 

must  be  strictly  construed,  242. 

difference  as  compared  with  powers  of  appointment  in  deeds,  242. 

abstract  of,  242. 

how  revoked,  243. 

how  exhausted,  24.3. 

substitution  under,  243. 
PRACTICAL  EXAMPLES, 

of  deeds,  194,  205,  209,  226,  234. 

of  wills,  377,  378,  382. 

of  mortgapres,  326. 

of  leases,  299. 

of  legal  proceedings,  281,  442,  456. 

of  land  entries,  110. 

of  certificates,  88. 

of  sales,  434,  435,  442. 

of  agreements,  291,  312. 

of  opinions,  556,  560. 

of  notes,  195,  516. 

of  rerccords,  215. 

of  formal  parts  of  abstract,  83,  89. 
PRECATORY, 

words,  what  are,  368. 

when  creating  trusts,  369. 
PRE-EMPTIOX, 

origin  of,  95.  * 

nature  of,  96. 

upon  what  lands  allowed,  96. 

requisites  of,  97. 

title  conferred  by,  97. 

conveyances  of  right  before  entry,  98. 

conveyances  after  entry,  99. 
PREFERENCES, 

in  matters  of  assignments,  274. 

in  line  of  descent,  500. 
PRELIMINARY, 

observations,  1. 

sketch  of  title,  81. 

survey  of  title,  530,  533. 

statements  in  abstract,  83. 
PRESCRIPTION, 

title  by,  42,  527. 

defined,  42. 

period  of,  43,  527. 
PRESERVATION, 

of  memoranda,  546. 


012  iinoEX. 

TRIMOGENITURE, 

a  canon  of  descent,  500. 

not  recognized  in  the  U.  S.,  500. 
PRINTED  COPIES, 

observations  upon,  553. 

•when  defective,  554. 

how  rendered  secure,  554. 
PRIORITY, 

of  deeds,  156,  195. 

of  mortgages,  334. 

of  mechanic's  liens,  392. 

of  judgments,  407. 
PROBATE, 

generally  considered,  379. 

jurisdiction  of  probate  court,  447. 
Of  Wills, 

effect  of,  379. 

foreign  probate,  380. 

abstract  of,  380-382. 

proof  of,  378. 
Op  Estates, 

matters  to  be  shown,  513. 

effect  of,  513. 
Decrees  and  Sales, 

operation  and  effect  of  decrees,  419. 

general  doctrine  of  probate  sales,  439. 

nature  and  requisities  of,  440. 

aljstract  of,  441. 
PROCESS, 

defined,  450. 

how  issued,  451. 

how  served,  452. 
PROCEEDINGS, 

incident  to  taxation,  480. 

in  probate,  380,  513. 

in  chancery,  456,  465. 

for  condemnation,  473. 

in  bankruptcy,  281. 
PROHIBITED   CONVEYANCES, 

effect  of,  211. 
PROOF, 

of  heirship,  32,  464. 

of  death,  33,  380,  507. 

of  legitimacy,  510. 

of  deeds,  171. 

of  wills,  379. 

of  service,  453. 


INDEX.  613 


PROOF.     Conftmied. 

of  publication,  426. 
Of  title, 

by  descent,  511. 

by  devise,  347,  377.     . 

by  deed,  151. 

by  adverse  possession,  .528. 

under  judicial  sales,  436. 

under  execution  sales,  436. 

under  foreclosure,  345. 

under  tax  sales,  478. 
PROPERTY, 

distinguished  from  title,  9. 

by  what  law  governed,  24. 
PUBLICATION, 

of  summons,  452. 

of  notice  of  sale,  426. 

proof  of,  426,  453. 
PUBLIC  GRANT, 

how  effected,  36. 
PUBLIC  DOMAIN, 

bow  divided,  137. 

bow  sold,  92. 
PURCHASE, 

title  by,  35. 

nature  of  title,  35. 

methods  of  purchase,  35, 
PURCHASER, 

at  judicial  sale,  4-30. 

at  tax  sale,  484,  485. 

of  public  lands,  108. 
PURCHASE  AND  LIMITATION, 

words  of,  353. 

in  deeds,  160. 

in  wills,  .353. 

rule  in  Shelly's  case,  355. 
PURCHASE  MONEY  MORTGAGES, 

lien  of,  331. 

how  expressed,  331. 

QUALIFIED  FEE, 

defined,  210. 
QUANTITY, 

never  allowed  to  control  courses.  162. 

when  may  be  resorted  to,  162. 

when  regarded  as  description  merely,  183. 


614  INDEX. 

QUIA  TIMET, 

defined,  462. 

by  whom  assorted,  463. 
QUITCLAIM  DEEDS.  j 

nature  and  eft'ect,  195. 

rules  of  priority,  195. 

conveys  only  present  titles,  196. 

abstract  of,  197. 

effect  of  covenants  in,  197. 

RAIL  ROAD  GRANTS, 

bow  made,  107. 
REAL  ACTIONS, 

general  summary  of,  447. 

how  shown,  456. 
RECEIVER'S  RECEIPT, 

effect  as  evidence,  117. 

how  shown,  118. 

abstract  of,  118. 
RECITALS, 

in  deeds,  163. 

in  official  conveyances,. 249. 

in  judgrments  and  decrees,  416,  417. 

in  tax  deeds.  490,  492. 

effect  as  estoppel,  158,  163. 

effect  as  evidence,  158,  163,  249  490. 

when  subject  to  contradiction,  158. 

when  matter  of  inducement  and  when  of  substance,  249,  490. 
RECORDS, 

defined,  56. 

depositories  of,  57. 

of  what  consisting,  56,  57. 

right  to  inspect,  57. 

as  affording  notice,  60,  62,  449. 

effect  of,  62,  449. 

loss  or  destruction  of,  63. 

search  of,  64,  76,  449. 

indexes  to,  67. 

general  land  office,  129. 

tax,  66,  483. 

of  courts,  436,  403,  420,  444. 

of  chancery  proceedings,  444. 
RECOMMENDATIONS, 

for  perfecting  title,  559. 
REDEMPTION, 

from  tax  sales,  486. 

from  execution  and  judicial  sales,  423. 


INDEX.  CL 


REDEMPTION.     Continued. 

from  sale  under  mechanic's  lien,  395. 

from  judf^ments,  411,  414. 

bill  of,  in  chancery,  468. 

equity  of,  317,  318. 
RE-ENTRY, 

for  forfeiture,  IGG,  210. 
REFERENCE, 

books  of,  65,  67. 

of  title,  455. 
REFEREE.S, 

conveyances  by,  254. 

reports  of,  455. 

deeds  by,  255. 
REGISTRATION, 

system  in  the  United  States,  61. 

from  what  derived,  61. 

effect  of,  62. 

of  patents,  129. 

of  deeds,  156. 

how  shown  in  abstract,  156. 

of  wills,  376. 

of  proof  of  wills,  378. 

of  plats  and  subdivisions,  147. 

of  seals,  237. 

of  proof  of  birth,  marriajjre,  and  death,  508. 

of  answers  to  inquiries  and  requisitions,  539,  559. 
RELATION, 

doctrine  of,  42. 

is  a  fiction  of  law,  42. 

how  applied,  42. 

does  not  affect  strangers,  42. 
RELEASE, 

at  common  law,  201. 

of  dower,  223. 

of  mortfirage,  340. 

remaindek!, 

what  is,  14,  364. 

when  contingent,  .364. 
REMAINDERMEN^ 

estate  of,  how  defeated.  365. 

adverse  rights  against,  525. 
RENT, 

what  is,  302. 
REPLIES, 

to  inquiries  and  requisitions,  539. 

of  what  consisting,  540. 


616  INDEX. 

REPRESENTATION-, 

the  right  of,  what  is,  499. 

per  stirpes,  500. 

per  capita,  500. 
REPIIGNANCY, 

in  deeds,  188. 

in  wills,  351. 

effect  of,  188,  351. 
REQUISITIONS  ON  TITLE,  • 

the  English  system,  536. 

adaptation  to  American  abstracts,  537. 

example  of  requisitions  and  replies,  538. 

answers  to,  539. 

of  what  consisting,  540. 
RE-RECORDS, 

of  deeds,  etc.,  215,  216. 

of  mortgages,  335. 
RES  ADJUDICATA, 

what  is,  413. 

of  judgments,  404. 

of  decrees,  413. 
RESERVATION, 

defined,  164. 

distraguished  from  dedication,  150. 

distinguished  from  exceptions,  164. 

effect  of,  in  plats,  150. 
RESIDUARY  CLAUSE, 

in  wills,  importance  of,  348. 

effect  and  operation,  372. 

how  shown,  375. 
RESIDUARY  DEVISEE, 

when  charged  with  debts,  371 . 

when  defeating  title  of  heu-,  372,  498. 
RESIGNATION, 

of  trustees,  247. 
RESOLUTION, 

municipal,  distinguished  from  ordinance,  307. 

when  to  be  shown,  307. 
RESTRAINT  OF  MARRIAGE, 

effect  of  condition  in,  363. 

limitation  as  distinguished  from  condition,  364. 
RESULTING  TRUSTS, 

when  arising,  214. 

effect  of,  215. 
RETURN, 

of  officers,  when  shown,  452. 


INDEX.  01" 


REVERSIONS, 

what  is,  14,  '^Q5. 

created  by  will,  065. 

when  the  subject  of  devise,  oG5. 
REVERSIONERS, 

adverse  possession  does  not  run   against,  525. 
REVOCATION, 

of  power,  242. 

of  dedication,  147. 
RIGHTS  OF  PURCHASERS, 

under  deeds,  192,  195,  197. 

under  wills,  347. 

at  judicial  and  execution  sales,  430. 

at  tax  sales,  485. 
RIPARIAN  PROPRIETORS, 

titles  of,  46. 

right  to  alluvial  formations,  44. 

rules  ior  measurement,  44. 
RIPARIAN  TITLES, 

common  law  rules,  46. 

in  the  United  States,  46. 
RIVERS, 

navigable  and  non-navigable  distinguished,  46. 

considered  as  highways,  47. 
ROOT  OF  TITLE, 

what  is,  5,  120. 

how  shown,  120. 
RULES, 

of  descent,  27. 

of  interpretation  and  construction,  190. 

of  deeds,  190. 

of  wills,  350. 

of  agreements,  290. 

of  governmental  grants,  123. 
RULE  IN  SHELLY'SCASE, 

generally  considered,  355. 

SALES, 

of  the  public  laml,  24. 

do  not  pass  title,  24. 

by  assi},mee  in  bankruptcy,  280. 

under  executions,  421. 

undor  decrees,  429. 

rights  of  purchasers  at,  430. 

confirmation  of,  4:32. 

for  non-payment  of  taxes,  481. 

rights  of  purchasers  at,  485. 


618  INDEX. 

SALES.     Continued. 

who  may  purchase,  484 

how  conducted,  481. 

title  derived  by,  478. 
SATISFACTION, 

of  mortgages,  341 . 

of  judgments,  411. 

of  tax  liens,  486. 

how  shown  in  abstract,  486. 
SCALE, 

for  indexing  books,  77, 
SCHOOL  LANDS, 

of  what  consisting,  106. 

grants  of,  how  created,  107. 
SEALS, 

at  common  law,  169. 

required  by  statute,  170. 

when  importing  consideration,  158. 

record  of,  237. 

to  process  of  courts,  452. 
SECTION, 

what  is  a,  138-9. 

how  divided,  140. 

when  fractional,  141. 

diagrams  of,  14  -1. 
SECTION  SIXTEEN, 

how  reserved,  106. 

when  State  title  attaches,  112. 

land  in  lieu  of,  113. 

abstract  of  appropriation,  113. 
SEIZIN, 

defined,  497. 

equivalent  to  ownership,  498. 
SERVICE, 

of  process,  450,  452, 

proof  of,  453. 

personal,  452,  454. 

constructive,  452. 

on  wrong  party, 

substituted,  452,  454. 

by  publi.  ation,  452,  454. 

admission  of,  453. 

return  of,  453. 
SERVITUDES, 

defined,  21. 

how  created,  21,  310. 

when  appurtenant,  310. 


INDEX.  gl9 


SERVITUDES.     ConUnued. 

when  in  grross,  310. 
SETTLEMENT, 
marriage,  217. 
of  estates  in  probate.  513. 
of  estates  without  administration,  514. 
SHERIFF'S   DEED, 
on  execution,  250. 
under  decree,  254. 
statutory  form,  253. 
SHORE, 

increase  upon,  44. 

how  determined  and  apportioned.  44. 
when  the  boundary  of  land,  44,  46 
right  to  shore  formation,  45,  4G. 
SIGNING, 

deeds,  essential  to  validity,  1C9. 
effect  of  discrepancies,  169. 
SKETCH  MAPS.  s 

how  made  and  used.  142,  545. 
their  value  in  examinations,  545. 
SOURCE, 

of  title,  11. 
of  information,  56. 
SPECIAL  WARRANTY, 
deeds  of,  198. 
covenant  of,  199. 
how  shown,  199. 
SPECIFIC  PERFORMANCE, 
of  land  contracts,  293. 
sufficiency  of  deed  and  title,  293. 
enforcement  in  chancery,  466. 
STAMPS, 

when  should  be  affixcl,  176. 
not  essential  to  validity,  176. 
STATE, 

possesses  solo  power  to  regulate  modes  of  transfer,  25. 
systems  of  land  disposal,  118. 
when  the  original  source  of  title,  134,  135. 
possesses  the  ultimate  property  in  land,  12. 
adverse  rights  can  not  prevail  against,  520. 
STATE  LANDS, 

origin  of  titles  to,  133. 
method  of  disposal,  118. 
certificate  of,  119. 
by  whom  executed,  119. 


620  INDEX. 

STATE  LANDS.     Continued. 

abstract  of,  119. 

patents  of,  133. 

formal  requisites,  136. 
STATUTE, 

grants  by,  effect  of,  121. 

abstract  of,  124. 

of  limitations,  effect  of,  43,  518. 

of  descent  and  distribution,  27,  499. 
STATUTORY  DEEDS, 

operation  and  effect  of,  200,  253,  490. 

of  warranty,  200. 

of  quitclaim,  200. 

of  sheriff,  253. 

of  county  clerk   (tax),  490. 
STATUTORY  MORTGAGES, 

effect  of,  327. 

technical  words  in,  327. 
STIPULATIONS, 

in  mortgages,  329. 

effect  of,  330. 
STIRPES, 

meaning  of  in  inheritances,  27,  499. 
SUBDIVISION, 

defined,  145. 

of  the  public  lands,  137. 

of  townshijjs,  139. 

of  sections,  140,  141. 

of  fractional  sections,  141,  143. 

by  individuals,  144. 

distinguished  from  plat,  144. 

formal  requisites,  145. 

effect  of,  147,  149. 
SUBJECT, 

of  sale  by  deed,  14,  36. 

of  disposal  by  will,  14,  33. 

of  descent,  26,  503. 

of  taxation,  477. 
SUB-LEASE, 

distinguished  from  assignment,  303. 
SUBROGATION, 

when  occurring,  411. 

effect  of,  411. 
SUBSTITUTION, 

delegated  powers  do  not  admit  of,  243. 

of  trustees,  247. 
SUCCESSORS, 

as  a  word  of  purchase  in  deeds,  232. 


INDEX.  G21 


SUCCESSION", 

of  heirs,  496. 

line  of,  498. 

of  adverse  claimants,  523. 
SUMMONS, 

formalities  of,  450. 

seiTice  of,  452. 

return  to,  453, 

publication  of,  452,  454. 
SURRENDER, 

deeds  of,  202. 

abstract  of,  203. 
SURVEY, 

government,  69. 

field  notes  of,  69. 

plats  and  subdivisions,  137. 
SURVEYING, 

a  general  knowledge  of  essential,  137. 
United  States  System  op, 

is  a  rectangular  sj"stem,  142. 

its  advantages  over  other  methods,  142. 
SURVIVORSHIP, 

words  of,  in  wills,  358. 
SWAMP  LAND  GRANTS, 

how  created,  105. 

of  what  comprised,  105-6. 

to  whom  made,  105. 

TACKING, 

defined,  23,  523. 

must  show  connected  possession,  23,  523. 

and  privity  of  contract,  523. 

unconnected  disseizins  not  available,  524. 
TAX, 

what  is  a,  476. 

lien  of,  478. 

Bale  for  non-payment,  481. 
TAXATION, 

defined,  476. 

nature  and  scope  of  taxing  power,  477. 

subjects  of,  477. 

proceedings  incident  to,  480. 
TAX  ABSTRACTS, 

form  and  contents,  494. 
TAX  CERTIFICATE, 

generally  considered,  487. 

abstract  of,  487. 


022  INDEX. 

TAX  DEED, 

operation  and  efFtict,  488. 

as  aft'ecled  by  statute,  488. 

formal  parts  of,  489. 

I'ecitals  in,  490. 

abstract  of,  491. 

prima  facie  character  as  evidence,  492. 

how  affected  by  statute  of  limitation,  493. 
TAX  INDEX, 

how  compiled,  74. 

illustration  of  page,  75. 
TAX  SALE, 

generally  considered,  481. 

how  made,  482. 

abstract  of,  483. 

taxpayer  as  purchaser,  484. 

rights  of  purchasers,  485. 

redemption  from,  486. 

certificate  of,  487. 
TAX  TITLES, 

technical,  not  meritorious,  478. 

requisites  to  a  perfeci  title,  478. 

independent,  not  dependent,  480. 

nature  and  effect,  474,  480. 
TECHNICAL  WORDS, 

generally  considered,  181. 

of  grant,  158. 

of  purchase  and  limitation,  160. 

of  description  of  persons,  367. 

of  description  of  property,  181. 
TENANCIES, 

defined,  22. 

nature  of,  23. 

not  estates  in  the  land,  23. 

how  created,  23. 

how  terminated,  23. 

joint,  225. 

in  common,  225. 
TENANTS, 

not  permitted  to  deny  landlord's  title,  23. 

when  niay  assert  adverse  title,  524. 
TENANTS  IN  COMMON, 

who  are,  225. 

distinguished  from  coparcenery,  503. 

conveyances  by,  225. 

how  affected  by  adverse  possession,  525. 
TERM, 

meaning  of  in  leases,  302. 


INDEX.  023 


TESTAMENTARY, 

titles,  36,  347. 

capacity,  3i9. 

conveyances,  32,  36,  346. 
TITLE, 

defined,  9. 

distinguished  from  property,  9. 

how  a'  quired,  9. 

classified,  10. 

legal  and  equitable  title,  11. 

sources  of,  11. 

nature  of  in  the  United  States,  12. 

allodial,  estates  under,  13. 

by  what  laws  controlled,  25. 

when  by  U.  S.  laws,  25. 

by  descent,  see  Descent. 

of  heirs,  9,  26,  32. 

color  of,  23. 

evidences  of,  24. 

sale  does  not  pass,  24. 

inception  of,  90. 

preliminary  stages  of,  90.  ' 

conferred  by  U.  S.  land  laws,  90,  lOS. 
who  may  acquire,  108. 

conferred  by  entry,  93,  110. 

to  section  sixteen,  112. 

exhibition  of  inceptive  measures  of,  110. 

under  State  grants,  118. 

root  of,  119. 

information  relative  to,  120. 

under  legislative  grants,  121. 

by  patent,  126. 

from  the  United  States,  126. 

from  the  State,  133,  135. 

original,  of  western  States  and  territories,  134. 

when  original,  135,  480. 

when  derivative,  135,  480. 

by  deed,  see  Dkkd. 

as  affected  by  error,  177. 

as  aflfectod  by  illegality,  191. 

of  leaseholds,  297. 

derived  through  mortgage,  316. 

under  will,  346. 

under  judicial  sales,  420. 

under  tax  sales,  476. 

adverse,  515. 

opinions  of,  529. 


^ 


624  INDEX. 

TOWNSHIP, 

of  what  consisting,  137. 

how  subdivided,  lo8. 

how  numbered,  138. 

diagram  of,  139. 

plats,  their  uses,  69,  139. 
TOWN  SITE  ENTRIES, 

how  made,  115. 

under  law  of  1864,  115. 

under  law  of  1867,  116. 

preliminary  statement  of,  1 16. 
TRACT  INDEX, 

nature  and  office,  72. 

how  compiled,  72. 

illustration  of  page,  73. 
TREE  CLAIMS, 

how  made,  101. 
TRUSTS, 

how  created,  15,  214,  243. 

as  regulated  by  statute,  15,  243. 

resulting  by  implication,  15,  214. 

express  trusts,  15,  243. 

how  disclosed,  244. 

when  void  as  a  conveyance,  244. 

operation  and  effect  of,  244,  245. 

of  sale,  257. 

distinguished  from  powers,  257. 

can  not  be  delegated,  256. 

testamentary,  366,  370. 

declaration  of,  245. 

conveyances  in,  244. 
TRUSTEES, 

definition,  256. 

nature  and  extent  of  title  of,  256. 

enumeration  of  powers  of,  257. 

transfers  by,  257. 

can  not  delegate  any  duty,  259. 

devises  to,  366. 
TRUSTEES'  DEEDS, 

operation  and  effect,  248,  259,  262. 

must  conform  to  delegated  powers,  259. 

formal  parts  of,  259,  261. 

abstract  of,  260. 
TRUST  IN  SALE, 

distinguished  from  power  of  sale,  257. 


INDEX.  625 


UNCERTAINTY, 
V  -  in  deeds,  178,  182. 

in  wills,  350,  353,  362. 

in  mortgages,  327. 

in  judgments,  409. 
UNRECORDED  EVIDENCE, 

when  permissible  in  abstract,  315. 
USE, 

.  deeds  to,  abolished,  15. 
USER, 

as  an  element  of  title,  518,  522. 

when  sufficient  to  support  title,  522. 

when  insufficient,  522,  523. 

permissive  user,  522. 

trespass  and  mistake,  523. 

clandestine  user,  519. 
USES  AND  TRUSTS, 

how  far  recognized  in  the  United  States,  15. 

VACATION, 

of  plats,  147. 

effect  of  vacation,  147. 

abstract  of,  148. 

of  street,  306. 

effect  of,  306. 
VALIDITY, 

of  governmental  conveyg,nces,  121,  127, 129- 

of  deeds,  191. 

of  mortgages,  327,  330,  331,  333. 

of  wills,  349. 

of  judgments  and  decrees,  409,  417. 

of  judicial  sales,  421. 

of  assignments  for  creditors,  275 . 
VENDOR  AND  VENDEE, 

relation  under  land  contracts,  288. 
VENDOR'S  LIEN, 

when  preserved,  324,  390. 

nature  and  effect  of,  324,  391. 

when  undisclosed,  391. 
VERDICT, 

effect  of  in  equity,  455. 

when  shown,  456. 
VOLUNTARY  CONVEYANCES, 

effect  and  validity  of,  157. 

WARRANTY, 

covenants  of,  166. 
40 


626  INDEX. 

WARRANTY.     Continued. 
effect  of,  168. 

when  operating  as  estoppel,  38. 
WARRANTY  DEED, 
legal  import  of,  192. 
operative  words,  192. 
abstract  of,  194. 
WIFE, 

legal  identity,  218, 
conveyances  by,  220. 
formalities  of  conveyances,  222. 
effect  of,  222. 
release  of  dower  by,  223. 
practical  example,  224. 
devise  to,  365. 
WILLS, 

generally  considered,  36,  346. 
nuncupative,  347. 
nature  of,  36,  347. 
title  conferred  by,  347. 
operation  and  effect  of,  348. 
validity,  349. 
construction  of,  350. 
repugnancy  in,  351. 
words  of  grant,  352. 
of  purchase  and  limitation,  353. 
of  survivorship,  358. 
words  which  pass  real  estate,  357. 
codicils  to,  372. 
formal  requisites  of,  373. 
abstract  of,  374,  376,  377. 
proof  of,  378. 
probate  of,  379. 
WITNESSES, 
to  deeds,  170. 
to  wills,  374, 
WORDS, 

of  grant,  158,  352. 

of  purchase  and  limitation,  160,  353. 

which  pass  real  estate,  357. 

of  survivorship,  358. 

of  demise,  299. 

of  assignment,  204. 

which  denote  conditions,  210. 

which  imply  covenants,  159. 

general  construction  of  in  wills,  353,  355. 


INDEX.  G2T 


WORDS.     Continued. 

denoting  testamentary  intent,  348. 

of  limitation  of  term,  299. 
WRITS, 

of  execution,  424. 

of  attachment,  400. 

venditioni  expoiias,  424. 

of  injunction,  458. 


INDEX  TO   FORMS. 


ABSTRACT, 

formal  captions,  83,  84. 

general  examination,  83. 

special  examination,  84. 

examination  of  tax  title,  84. 

formal  conclusion,  89. 
ABSTRACT  INDICES, 

original  entry,  70. 

document  number  index,  71. 

tract  index,  73. 

irregular  index,  75. 

judgment  index,  76. 

scale  for  indexing,  77. 
AFFIDAVIT, 

of  matter  in  pais,  314. 

of  publication,  426. 
AGREEMENT, 

for  conveyance  by  deed,  291,  295. 

for  party  wall,  312. 
ANALYSIS  OF  TITLE, 

to  show  ownership,  541. 

to  trace  course,  544. 

English  method,  570. 
ATTACHMENT, 

proceedings  in,  401. 

certificate  of,  401. 

BOND, 

for  deed,  295. 

CERTIFICATE, 

of  examination,  89. 
of  conformity,  187. 
of  levy  (attachment),  401. 
of  sale  (execution),  434. 
of  sale  (judicial),  435. 
official,  309. 

(628) 


INDEX    TO    FORMS.  029 


CERTIFICATE.     Contimml. 

of  death,  509. 

of  proof  of  will,  378. 
CHANCERY  RECORDS, 

general  form,  456. 

in  special  cases,  465. 

notes  of,  divorce,  472. 
CONGRESSIONAL  GRANTS, 

act  of  Congress,  124. 
CORPORATE  CONVEYANCES, 

corporation  deed,  234. 

special  appended  matter,  236. 

showing  power  to  execute,  236. 

DECLARATION. 

of  vacation  of  plat,  143. 

of  trust,  246. 
DECREE, 

common  fonu,  417. 
DEEDS, 

warranty,  194. 

warranty,  by  attorney,  240. 

warranty,  special,  199. 

i)i  fiituro,  205. 

surrender,  common  law,  203. 

of  special  estates,  209. 

partition,  226. 

by  corporation,  234,  236. 

by  sheriif,  253. 

by  master,  255. 

by  trustee,  260. 

by  administrator,  266. 

by  register  in  bankruptcy,  282. 

by  assignee,  283. 

by  county  cb-rk  (tax),  491. 

of  trust,  3:56. 

of  relinquishuient,  224. 

INITIAL  STATEMENTS, 
entry  at  laud  otlii't',  110. 
donation  by  the  United  States,  112. 
cession  of  section  sixteen,  113. 
cession  of  lieu  lands,  113. 
receiver's  receipt,  118. 
commissioner's  receipt  (State  lands),  119. 

JUDGMENT, 

common  form,  410. 


C30  INDEX    TO   FOKMS. 

LEASE, 

for  years,  299. 
LIS  PENDENS, 

notice  of,  odd. 

MASTER'S, 

certificate  of  sale,  435. 

deed,  225. 
MORTGAGES, 

common  form,  326. 

to  secure  purchase  money,  331. 

trust  deed,  336. 

power  of  sale  in,  337. 

release  of,  343. 

marginal  discharge  of,  344. 

NEW  ENGLAND  ABSTRACTS, 

sample,  568. 
NOTES, 

of  source  of  infoiTnation,  157. 

of  imperfect  designation,  178. 

of  cei'tificate  of  magistracy,  187. 

of  covenant  of  non-claim,  199. 

of  chancery  records,  472. 

of  adverse  conveyances,  516,  517. 
NOTICE, 

lis  pendens,  399. 

of  sale,  426. 

OFFICIAL  CONVEYANCES, 

sheriff's  deed,  253. 

master's  deed,  255. 

trustee's  deed,  260. 

administrator's  deed,  266. 

assignee's  deed,  283. 

county  clerk's  deed  (tax),  491. 
ORDER, 

for  examination,  88. 
ORDINANCE, 

of  municipality,  306. 
OPINION  OF  TITLE. 

based  on  personal  search,  556. 

based  on  the  abstract,  560. 

PATENTS, 

from  the  United  States,  133. 
POWER, 

of  attorney,  242. 


INDEX    TO    FORMS.  031 


rOWER.     Confiniied. 

of  sale,  261. 
PROBATE, 

of  wills,  ;:!82. 

of  estate,  513. 

Bales,  442. 
PROCEEDINGS, 

in  bankruptcy,  281. 

in  probate  (will),  382. 

in  probate  (sale),  442. 

in  probate  (heirship),  513. 

in  chancery,  456-7. 

in  partition,  465. 

RECEIPTS, 

of  Receiver  U.  S.  Land  Office,  118. 

of  Commissioner  State  Lands,  119. 
RELEASE, 

of  dower,  224. 

of  mortgage,  343. 

on  margin,  344. 
RE-RECORD, 

of  deeds,  215. 

of  lease,  216. 

SALE, 

notice  of,  426. 

certificates  of,  434-5. 
SALES, 

in  bankruptcy,  281. 

in  probate,  442. 

in  chancery,  435. 

under  execution,  434. 
SHERIFF'S, 

certificate  of  sale,  434. 

deed,  2-.3. 
SUBDIVISION, 

minutes  of  plat,  146. 

vacation  of,  148. 
SURRENDER, 

of  life  estate,  203. 

TAX  SALES, 

general  forms,  483. 
forfeiture,  48  L 
certificate  of,  487. 


632  INDEX    TO    FORMS, 

VACATION, 
of  plat,  148. 
of  street,  306. 

WILLS, 

common  form,  377, 
with  special  provisos,  382. 
proof  of,  878. 
probate  of,  382. 


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